August 15, 2019

The 5 most common ways a Will is challenged

will testament
  1. Mental capacity

This is possibly the most common type of claim, which is perhaps unsurprising with a continuously ageing population and a tendency for people to make wills later in life. A person making a will should understand what assets they have, the effect of making a will and they must be able to appreciate to whom, objectively speaking, they might be expected to provide. Concerns often arise where an individual has been diagnosed with dementia prior to making a will, but this will not automatically mean a person lacks capacity and the relevant factors must be considered.

  1. Undue influence and lack of knowledge and approval

Whilst technically distinct legal claims, it is not uncommon for the background circumstances to be similar when these claims are raised. Undue influence is the more serious, essentially requiring the person making the will to be coerced into making a will in terms they would not have wished. Whilst strong evidence will be required to support a case, the level of ‘influence’ required will depend on the circumstances of the case, with far less influence potentially being required for a vulnerable elderly relative.

Sometimes lack of knowledge and approval is claimed where it is believed a will may have been placed in front of a person for signature, without them really understanding what was in it. This is likely to be less relevant if a will was made with a solicitor who read out the terms before it was signed.

  1. A failure to follow the correct procedure

There are strict rules governing how wills must be produced, which include the will needing to be signed by the relevant person and witnessed by two individuals, all of whom must be present at the same time when those signatures are taking place. This is a real risk for those who may wish to avoid the cost of making a will through a solicitor and try to make one at home instead. However, even if the correct procedure is followed, home-made wills can lead to other issues, such as disputes over the interpretation of wishes that may not have been expressed in the most legally appropriate way.

  1. Fraud or forgery

Whilst not encountered as often as the above mentioned areas, claims may arise in circumstances where, after the death of a person, an individual unexpectedly comes forward with a home-made will which primarily benefits them. As with undue influence, strong evidence will be required to support such claims and allegations should not be made lightly. Also related to the area of fraud are claims based upon an allegation that an individual has deliberately made false statements about another, with a view to “poisoning” a person’s mind, which may then result in an alteration to a will. This was seen recently in a 2017 case where a will was successfully overturned after a daughter had lied to her mother about her sister stealing her mother’s money, leading to that sister being disinherited within her mother’s last will.

  1. Inheritance Act claims

Whilst not strictly a basis for challenging a will, Inheritance Act or ‘financial provision’ claims seek to challenge the basis upon which the estate is to be distributed. There is a set criteria for those that are able to make claims, which include spouses and civil partners, cohabiting partners of more than 2 years, children (including adult children) and other financial dependants. Claims are assessed on the basis of a variety of factors including the financial position of the person making the claim, the financial position of those due to benefit and the size of the estate.

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