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Challenging a Will

Challenging a Will

The purpose of a Will is to reflect someone’s final wishes as to how their estate is to be distributed. However, there may be circumstances where you believe that the Will is invalid. If you have concerns about a Will, and are considering a challenge, then it is important to understand the grounds and timescales of any potential claim.

At The Burnside Partnership we can help with either bringing or defending such claims, with the assistance of specialist lawyers to ensure that the claim is dealt with as quickly and efficiently as possible. We pride ourselves on our ability to explain matters in straightforward terms and using understandable language to assist you in resolving claims as quickly and cost effectively as possible.

To bring a challenge, you must have what is referred to as ‘legal standing’ to challenge a Will. This means that you must either benefit under the Will you are challenging or under an earlier Will.

What are the grounds for challenging a Will?

There are various grounds for contesting a Will and you must be able to demonstrate at least one of these grounds. If the Will is proved to not be valid then the Estate will pass under the terms of an earlier Will (if any). If there is no earlier Will then the Estate will pass according to the Rules of Intestacy.

The first ground is that the Will does not comply with the necessary requirements as set out in s.9 of the Wills Act. These requirements need the Will to be in writing, to be witnessed correctly and to specify that it is a Will.

A challenge to the Will may also be brought if:

-       There was a lack of testamentary capacity, whereby the person making the will lacked the mental ability to understand they were making a Will, the Will’s contents or they were affected by a cognitive impairment which impacted on their ability to make a Will, such as dementia, Alzheimer’s’ or a brain tumour.

-       Lack of knowledge and approval, whereby the person did not understand the contents of the Will or signed it under false pretences. The Court will be suspicious where someone who benefits under the Will was actively involved in its preparation or signing. However, if a solicitor prepared the Will, it can be difficult, but not impossible, to prove lack of knowledge and approval.

-       Undue influence or coercion, where someone is pressured into making a Will that does not reflect their wishes. This may be by someone taking advantage of a weak and infirm person both my immediate pressure or force in the short term, or in a gradual process over many years.

-       Forgery or Fraud: where the Will, or signature on the Will, is a complete fabrication. An allegation of fraud needs to be supported with robust evidence as it is a serious allegation.  It is for the person raising the argument of fraud/forgery to prove the will has been forged.

How long do I have to bring a Will challenge?

There is no time limit in bringing a Will challenge. However, it is important to consider that the longer the delay in brining a Will dispute, the more likely it is that the Court will determine that you are no longer entitled to bring a claim.

It is therefore important to seek legal advice as soon as possible.

How can I fund my claim?

At The Burnside Partnership we understand the potential financial risk associated with bringing a will challenge. As such, we can offer a range of funding arrangements including Conditional Free Arrangements and Deferred Fee Arrangements.

The decision to enter a fee arrangement to fund your matter will be at the discretion of The Burnside Partnership, and the decision will be based on the merits and likelihood of success of your matter.

I think someone has taken advantage of my relative and forced them to change their Will, what can I do?

It is unfortunately the case that vulnerable friends and relatives can be at risk of being taken advantage of by those who may feel than can benefit from being added into their Will. It is a sad reality that neighbours, carers or even estranged family members may look to influence elderly people for their own gain.

If you believe that someone has taken advantage of a vulnerable person or relative it is important to act quickly to bring to the attention of the executors of the Will that there is a dispute.

The first action to take will be to lodge a Caveat with the Probate Registry against the estate. After a Caveat is lodged this will prevent the Grant of Probate from being obtained, preventing the executor from administrating the estate, providing you time to investigate your claim and assess the merits.

After the Caveat is lodged it is then important to gather as much evidence as possible to substantiate your claim. Obtaining copies of the current and any previous Wills, as well as the file of the solicitor or Will writer to prepare the disputed Will. It may also be appropriate to obtain your relative’s medical records and witness statements from individuals who regularly saw your relative.

Once you have determined that your claim has merits, a claim can be advanced.

It is important to note that if a Will is deemed to be invalid, the estate will then pass in accordance with the terms of an earlier will or, if there is no will, the laws of intestacy. As such, it is important to check that you benefit from challenging a Will.

I am worried that my parent’s new partner has forced them to change their Will.

With higher standards of living and increased life expectancy, second marriages/civil partnerships/relationships and blended families are more common. It is often the case therefore that people wish to change their Will to reflect this new relationship.

Sometimes in these circumstances the amendment will be minor i.e. adding the new partner to the Will.  Sometimes, however the amendment is major, unusual, or suspicious.  Sometimes the relationship itself appears unusual or strange for example where there is a significant age gap or the relationship is sudden and the partner practically a stranger. Such changes can lead to claims there was pressure from the new partner. Concerns may also be raised if your parent is vulnerable in terms of their age or disability or cognitive ability i.e Dementia or Alzheimer’s’ Disease.

If you believe that your parent has been forced into changing their Will by anyone, it is important to lodge a Caveat with the Probate Registry, to ensure that a Grant of Probate is not obtained.  This will allow breathing room to gather evidence and prepare your claim.

Alongside copies of the Will and the Will files, if you believe that your parent suffered from a condition that impact their ability to understand what they were doing it is important to obtain a copy of their medical records.

It is important to act quickly and take legal advice especially as partners might be eligible to claim against the state under the Inheritance (Provision for Family and Dependants) Act 1975 even if they are not included in your parent’s will. 

I am worried that a signature on a Will is forged

It is very rare that a whole Will be forged. It is more common that there will be an allegation of forgery of a signature on a new Will.

If you believe this to be the case, then the first step will be to lodge a Cavet to ensure a Grant of Probate is not obtained and allow you room to gather evidence and prepare a claim.

When attempting to prove a forgery, unless you can obtain a confession from the forger, it will be necessary to obtain evidence from a handwriting expert. It is therefore important to obtain as many examples as possible of the real signature for the expert to consider. This could include letters, cheques, and other formal documents such as passports.

If the handwriting expert does deem the signature to be a forgery this can then be presented as evidence, and if the Court deems that on balance the signature was forged, then it will be deemed that the Will was not signed. Therefore, any previous, correctly executed, Wills will then be deemed to be the correct will.

How can we help?

Whatever the situation is, our expert team of Contentious Wills and Estates solicitors will be able to assist. Our experienced team can advise you on the merits of your case, the appropriate course of action, and the potential costs involved. We understand the emotional strain associated with will disputes and can guide you through the legal process with sensitivity and expertise.

If you have a concern over a Will, please do not hesitate to contact Tara McInnes at tara.mcinnes@theburnsidepartnership.com or Edward Capstick at edward.capstick@theburnsidepartnership.com