Coping with the death of a loved one is always a difficult time, and it’s perhaps therefore unsurprising that emotions can be running higher than usual.
In many cases, the contents of a Will is not unexpected and all parties concerned are happy with what’s been left and who the beneficiaries are.
Unfortunately this isn’t always the case.
If you are unhappy with the contents of a relative’s Will, you may be wondering what options you have. We take a look at what you should do if you do not agree with the contents of an individual’s Last Will and Testament.
Your first instinct may be to go charging in but it’s worth waiting a few days at least to think through the implications of protesting against the Will.
Challenging a Will can stimulate many emotions in family members and friends. Some people do not believe that an individual’s last wishes should be challenged, whilst others may feel defensive about money which has been left to them by the deceased.
Whatever the politics of the individual circumstances, it’s wise to treat carefully to avoid stirring up lots of emotions at a time when many family members may already be feeling stressed and upset.
If you have waited a few days and still decide that you want to take action against a Will you perceive as unfair, it’s worth getting a professional opinion about how successful any challenge may be.
It’s probably a good idea to seek advice before announcing that you will be mounting a challenge because if you are told you have no grounds to appeal, you could have upset the apple cart for no reason.
An experienced Wills solicitor will be able to assess your case and help you to understand whether or not you have any grounds to challenge the distribution of assets, there is some excellent information here.
To challenge or not to challenge?
Deciding whether or not you have grounds to challenge the Will is somewhat easier than you may expect. There are only certain situations in which a contestment be lodged; these are summarised below.
Any Will which was not properly executed can be dismissed as invalid. This would mean that the last valid known Will which was left instead is used or the rules of intestacy are applied. A typical example of improper execution might be a Will which was not signed and witnesses properly.
Fraud or forgery
A straight forward enough reason, fraud or forgery refers to the Will being manufactured and/or signed by someone other than the Testator. Cases of questionable capacity are not included here; this category is reserved for the deliberate creation of a Will which was not created by the Testator. Proving fraud is far from easy but evidence such as differing signatures and questionable witnesses may be taken into account.
In order for a Will to be accepted as valid, the individual must understand that they are making a Will, how much they have to give away and also the implications of the decision they reach. Medical evidence can often support this kind of claim and is far more common with elderly individuals.
Knowledge and approval
An individual’s Will can only be taken as valid if they are fully aware of not only what they are doing but the consequences of their actions. If they are afflicted by an illness or condition which could influence how much they understand, their Will could be successfully challenged after their death. Another example where this clause could successfully be used is if the instructions in the Will are wrapped up in legal jargon (which could have led to a lack of comprehension) and was not satisfactorily explained to the Testator.
Even if an individual has the mental capacity to understand the creation of a Will, circumstances may still arise where they are coerced into agreeing to do something they didn’t really want. This is perhaps one of the most difficult cases to prove, but if a third party can be shown to have exerted undue pressure, the Will can be overturned. A solicitor’s advice on this particular issue is invaluable.
Inheritance Act 1975
The above criteria are the only ones on which a challenge can be successfully mounted with one exception: the Inheritance Act 1975.
This Act stipulates that spouses, children and financial dependants also have the right to expect to be provided for in the event of death. If a Will does not make reasonable provision, a challenge can be launched under the Act.
The only situations which allow for a Will to be challenged are described above. However, of course in many cases the details are far too complex to fit neatly into one box or another. If you think you may have a valid case to contest a relative’s Will and have decided that you want to do so, you should consult a solicitor at the earliest opportunity in order to get some advice about the next steps. In some cases you only have a limited amount of time to claim, and once the estate has been distributed it can be far more difficult to get what you are entitled to so it’s essential that you get professional advice as soon as you possibly can.