This is a difficult subject for everyone, especially when it concerns family or close friends.
Challenging a will is emotionally charged but you may realise after a loved one has died that they either changed, or wrote their will whilst suffering from mental impairment. Everyone has a fundamental right to decide how their estate is divided after their death, but the population is living longer and with age-related memory problems on the increase, more and more people are seeking advice on contesting an ‘unexpected’ will.
What makes a will valid?
In order for someone to make a valid will there are several conditions that must be met. These are:
- They must understand that they are making a will and disposing of their assets after death
- They must be aware of the extent of their assets / estate they are leaving in the will
- They must understand the likely entitlements that friends and family members might assume concerning the estate
- They must not be suffering from any mental condition that may adversely affect their judgement
- They must not be told falsehoods to poison their mind against a loved one, relative or friend
- The will must be signed correctly in the presence of independent witnesses
Michelle Hayter, Dispute Resolution Partner, says “You may also wish to challenge a will on the basis of undue influence. This is when you believe that someone may have exerted pressure on the person who has died to change their will.”
Reasonable doubt – challenging a will
If a will appears to have been properly written, it is assumed to be valid. However, if you can establish that there is ‘reasonable doubt’ over one or more of the conditions listed above, any person who wants to argue that the will is valid must prove that it is so.
If you believe that the will is not valid and wish to make a claim against the beneficiary, seek advice from a solicitor who specialises in contentious probate. Michelle is a Member of the Association of Contentious Trust and Probate Specialists (ACTAPS), which demonstrates her expertise in disputes over wills and inheritances, and she would be happy to offer advice on your situation.
What happens when a will is proved to be invalid?
If a will is found to be invalid, the terms of a previous will are carried out. If there is no previous will the estate will be distributed under the rules of intestacy – that is – as if there is no will at all.
Our Dispute Resolution Team are happy to discuss any issues that this raises for you. If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 and Michelle or a member of the team, will be happy to chat about your situation and your particular requirements.