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Latest Milburns Solicitors News

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Challenging a Will

Posted: 6th July 2017

 How you can challenge a Will?

When someone close to you dies, emotions can run high. Not only is there shock and grief, but the discovery that you have been "cut out" of the Will can be the last straw.

Where a financial inheritance is at stake and family members suspect foul play, a small grievance can easily escalate into something much bigger.

An increasingly ageing and wealthy population also means a greater likelihood of vulnerable adults falling victim to unscrupulous family members or carers when making arrangements for the disposal of their assets after death.

Legal grounds for challenging the validity of a Will are strictly defined. Such cases are becoming more and more commonplace so if you suspect a Will is invalid, what can you do about it?

Do you believe one or more of the following criteria applies?

1.       Has there been a lack of proper formalities?

A will must be made in writing and be signed by the testator - the person making the Will - in the presence of two witnesses who must also each sign the Will in his presence. Alternatively, the Will can be signed in the presence of the testator and at his direction.

If any of these requirements are missing, the Will is invalid.

2.       Does the testator have the relevant mental capacity?

He must be capable of understanding that he is making a Will and disposing of his assets on death.

He must also be capable of understanding the extent of his estate and appreciating the potential claims that could be made on his estate on his death.

Testamentary capacity may be lacking because of mental illness; commonly Alzheimer's disease or other forms of dementia.

But the issue also arises where a testator is terminally ill and heavily dosed with painkillers.

3.       Lack of knowledge and approval?

A testator must know and approve the contents of the Will.

If a Will is properly executed the person challenging it must prove that the testator did not know and approve the content.

However, if circumstances surrounding the Will are particularly unusual or suspicious, then the person seeking to rely on the Will has the burden of proving validity.

 

Circumstances which might prompt further investigation include the main beneficiary preparing the Will for the testator, or a carer preparing a Will on behalf of an elderly or infirm patient.

4.       Undue Influence?

A successful allegation of undue influence must demonstrate that the testator was coerced into making the Will. No physical force is necessary to prove coercion, but evidence that someone simply reminded the testator of his family obligations is not strong enough evidence.

Since the testator cannot give evidence directly, this is a difficult allegation to sustain - there may suspicion, but little hard evidence!

Forgery is notoriously hard to prove and is rarely pleaded on its own; usually it is coupled with an allegation of lack of knowledge and approval.

What to do?

If you suspect a Will is invalid on any of these grounds you should consult our expert solicitors Nick Molyneaux, Deputy District Judge and Lucy Fuggle STEP practitioner for further advice.

It is important to act quickly at the outset to prevent the estate being administered in accordance with an invalid Will and the assets being dissipated. 

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