The will of someone who has died can sometimes be a surprise to family members. The children of the deceased might be given only small bequests, with a neighbour given the bulk of the estate; a brother might be left more than a sister; a charity might be left everything, with the family excluded entirely. If the circumstances are suspicious, disappointed relatives (or others) will often want to consider if the will can be contested. So how do you challenge a will?
Grounds To Challenge A Will
To challenge the validity of a will, you have to establish one or more of the following grounds:
– The will was not correctly executed
A will must be in writing. It must be signed, dated and witnessed by two independent witnesses at the same time as the person making the will. Neither witness can be a beneficiary.
– The testator lacked the necessary mental capacity, or otherwise lacked knowledge and approval of the contents of the will
The person making the will must have understood the nature of making the will, the extent of the property which they were disposing of and the claims to which they ought to give effect. Will disputes are common when the person making the will was suffering from Alzheimer’s disease or other forms of dementia.
– The testator was subject to undue influence
There must have been no pressure on the person making the will to alter it or make any particular provisions in it.
– The will was forged/fraudulent
In some rare cases signatures on a will are altered or wills destroyed.
If the will is valid but you have not been sufficiently provided for, or have been cut out of the will entirely, you may be able to make a claim on the estate.
What’s The Procedure To Challenge A Will?
It is important to act quickly: a claim is easier to make before the estate is administered. You can also ensure that estate assets are protected. You (or your solicitor) should obtain a copy of the will as soon as possible. If the person administering the estate (the executor) refuses to provide a copy, you could issue a ‘caveat’, which stops them obtaining a grant of probate.
You or your solicitor should write to the executor setting out your reasons for saying the will is invalid. Most claims are concluded by a negotiated settlement, but if agreement is not possible then ultimately you may need to bring court proceedings.
Who Pays The Costs?
Before court proceedings are issued each party usually pays their costs, but after proceedings are issued the loser pays the winner’s costs. However, estate funds are often used to pay all costs.
It is important to take advice about a particular set of circumstances. Call us today to discuss your situation and how we can help.
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