An expert’s view on what you need to know before challenging or defending a Will
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As well as being an emotionally difficult time, losing a loved one can inadvertently plunge you into an inheritance dispute.
When it comes to contesting a Will, or making a claim under the Inheritance Act, there are a number of crucial legal aspects to get to grips with. “These are often quite complex matters that can take a significant amount of time to resolve,” explains Michael Henry, a senior lawyer at Debenhams Ottaway based in St Albans.
We speak to Michael about the importance of probate, the grounds for challenging a Will and the process for making claims.
Q: What are the main grounds for challenging a Will?
A: There are a wide range of grounds for making a claim against a Will. Whether it's a lack of testamentary capacity (the mental capacity required to make a Will) or concerns about the validity of signatures, it pays to know exactly what your argument is before you take legal action.
Under the Wills Act 1837, two witnesses must be present at the time the Will is signed and each must also sign in the presence of the testator (the person making the Will). With homemade Wills where solicitors are not present, this crucial aspect can sometimes be overlooked – or even fabricated under fraudulent circumstances. In some cases, concerns that the testator was pressured or coerced into making decisions may need to be explored.
Q: What is the significance of a caveat and why should you file it before probate?
A: When there are concerns about the validity of the Will, a caveat acts as a block to prevent probate leading to assets being divided between beneficiaries. Probate is the legal right to deal with the property, assets and possessions of a deceased person.
Filing a caveat before the grant of probate allows for breathing space between both parties, gives them time to communicate and negotiate, or bring a claim to the court if necessary. It also drastically increases the likelihood of a successful claim, as challenges that occur after the assets have been handed out under the terms of the disputed Will have a lower rate of success.
Q: If a claimant believes the Will was not made by someone of sound mind, what should be done?
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A: The testator who is making or amending a Will must have the mental capacity to do so. It's vital that the testator is capable of understanding the nature of the document they are making, the extent of their assets and the claims of those who could stand to benefit.
Claimants concerned that these criteria have not been met should approach a solicitor for assistance. Ill health and conditions such as Alzheimer's can influence a person’s capacity, so expert medical evidence is crucial. It is possible to gain access to medical records, treatment and medicinal prescriptions and written GP statements.
Q: What happens when a Will has not been witnessed or drafted properly?
A: This is a major concern with homemade Wills not drafted by solicitors, or Wills that have been rushed through. There are a number of important steps that must be done correctly, otherwise the Will may be declared invalid. These consist of:
- The Will must be signed and witnessed before death;
- Testator and two witnesses must be present for the Will signing;
- A witness or their spouse cannot benefit under a Will if either sign as a witness;
- The Will should be dated correctly.
When a Will has been drafted professionally, two individuals from the law firm often act as witnesses and keep accurate records in the Will writer's file. Validity concerns can occur when a Will has been drafted at home, as the identity and neutrality of the witnesses and the attention to detail are more likely to be questioned.
Q: Are there advantages to mediation during a Will dispute?
A: Certainly – mediation is an alternative form of resolution for disputes, which has proven immensely useful for Will contentions and Inheritance Act claims. During mediation, a third party will oversee negotiations between the two contesting parties.
This method is often a lot less stressful than taking a dispute to court, achieves a high resolution rate and is far more cost-effective and time-efficient for all parties.
Michael Henry is a senior contentious trusts and probate lawyer with 20 years of experience, covering Will validity disputes, alternative dispute resolution and claims under the Inheritance Act. He is also a member of the Association of Contentious Trust and Probate Specialists (ACTAPS).