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Suspicious wills, and how to challenge them

When someone dies, their will can sometimes be a surprise to family members. The children of the deceased might be given only small bequests, with a neighbour given the bulk of the estate; a brother might be left more than a sister; a charity might be left everything, with the family excluded entirely. If the circumstances are suspicious, disappointed relatives (or others) will often want to consider if the will can be contested.

What circumstances make a will suspicious? To put it another way, what grounds are there for challenging a will? There are several. The first is if it was not properly executed. A will must be in writing, and be signed, dated and witnessed by two independent witnesses.

The second ground is that the person making the will did not have the necessary mental capacity, or did not know and approve of the contents of the will. They must have understood the nature of making a will. They must also have known the extent of the property which they are disposing of and the claims to which they ought to give effect. A common reason for disputes is that the person making the will suffered from Alzheimer’s disease or another form of dementia, and so did not understand who they were leaving out of the will.

Thirdly, a will can be challenged if there was ‘undue influence’ on the person making it. In other words, there was pressure on them to alter the will or make any particular provisions in it. Usually this amounts to giving a particular gift or legacy to the person doing the ‘influencing’.

What should you do first if you want to challenge a will? It is important to act quickly, because it is easier to make a claim before an estate has been administered, i.e. before the gifts and legacies are distributed. By acting quickly, you can also ensure that estate assets are protected. You (or your solicitor) should obtain a copy of the will as soon as possible. If the person administering the estate (the executor) refuses to provide a copy, you could issue a ‘caveat’, which stops them obtaining a grant of probate.

You (or your solicitor) should write to the executor setting out your reasons for saying the will is invalid. Most claims are concluded by a negotiated settlement, but if agreement is not possible then ultimately you may need to bring court proceedings. The general rule with legal disputes is that before court proceedings are issued each party bears their own costs, but after proceedings are issued the loser pays the winner’s costs. However, on many occasions where a will is challenged all parties recover their costs from the money in the estate.

Postscript

If a will is definitely valid but someone has not been sufficiently provided for in it, it is possible in some circumstances for them to make a claim for ‘financial provision’ from the estate. A typical scenario is where the person making the will leaves only a small gift to their spouse and the bulk of their estate to a favourite charity. The will might have been made when the defined gift to the spouse was equivalent or greater than the remainder of the estate, but over time the estate has grown larger and the relative sizes of the gifts have changed. There are strict rules about when and how to make a claim. See: Claiming your fair share from an estate

Michael Feakes
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