Challenging a Will
Dealing with a loved-one’s Estate after their passing is always a difficult time. It can be more difficult when their Will provisions are unexpected or unusual. Sometimes family members have concerns about a will, and it is necessary to look into the matter a bit more.
A will might have unusual or unexpected provisions, or it was executed at a time when the deceased was ill, vulnerable or in hospital. It might benefit one person more than others which was unlike previous wills or how they treated their family, or the person who benefits was involved in the creation of the will in circumstances which might raise concerns.
Finding out more about the Will, how it was drafted and what the circumstances were at the time will often answer most questions and address any concerns. It can give family members piece of mind that they looked into the matter and have satisfied themselves that the Will is valid and their Estate can be distributed under that Will.
However sometimes the suspicions about the Will increase, circumstances come to light which are unusual or even more concerning, and family members can have real doubts about whether the Will is valid.
A Will might not be valid if:
- It was not executed properly – for example if it was not witnessed properly, if changes were made after it was executed, or it was not signed.
- The person making the Will did not know and approve the contents – eg if the Will was not read back to them before signing and/or they didn’t know or fully understand its provisions.
- The person making the Will lacked capacity at the time of the Will – eg if they were ill or taking medication which made them confused, or if they had mental health issues or an illness which affected their testamentary capacity (the capacity to make a valid Will).
- The person making the Will was being so pressured or influenced by another that they made a Will which did not reflect their true wishes.
- The Will itself was forged or faked so that it is not a real Will by the deceased.
Investigations into a Will and how it was drafted and executed are very useful to find out more and determine whether the concerns are real or whether they can be explained. Evidence is crucial if a Will is going to be challenged; a Will will not be overturned or invalid simply because someone does not like its provisions or there are suspicions – evidence is needed to prove any concerns or doubts. Obtaining medical records, the Will file, witness statements and looking through the deceased’ correspondence will be important to understand what happened and whether a successful challenge might be able to be made.
If concerns are raised and evidence can be obtained to show that those concerns are genuine and that the Will may not be a valid Will, these need to be put to the Administrators of the Estate or the beneficiaries, so that questions can be realised and hopefully answered and documents can be provided. Most challenges to a Will can be resolved between the parties and a settlement negotiated and reached so that the administration of the Estate can continue. If a claim cannot be resolved through correspondence, mediation is often very successful to enable the parties to resolve the dispute and avoid court proceedings. Taking the matter to court is usually a last resort, because it is so expensive, lengthy and stressful for all involved. Most claims can be settled which will reduce family fall-outs and avoid expensive legal proceedings.
For more information or just a chat, please contact our team on: 01273 477071