Defending a Contested Will
If you are involved in a claim regarding a contested Will, the first thing you should do is to enlist expert legal help. Doing this in the early stages of the process ensures that you are in the strongest possible position to defend yourself from the claim.
Typically, the first thing that will need to be done is that the person challenging a will obtains a “caveat” which prevents the estate being administered.
Once this is done, it is often important to communicate with the opposing party in documentation to formalise both of your legal positions. From here sometimes the matter can be resolved through negotiations around a potential settlement. Sensible use of an independent mediator can also help parties reach agreement.
If an estate believes the challenge to a will is not legitimate there are powers and procedures that can be followed to advance the administration of the estate.
For example, you can “warn off” a caveat which can be followed by court proceedings and getting an interim grant of probate.
Generally, a Will can be challenged by various different claims:
If a Will has been signed and witnessed correctly it is usually valid. However, there are several grounds that mean a Will could be challenged.
Testamentary capacity: If the testator (the person that made the will) did not have good mental capacity at the time they made the Will, then this could render it invalid.
Undue influence: Where a testator was pressured into making a specific Will, the gift from this Will can be taken away from the person that pressured the testator. This is more likely to be successful where the individual is suffering from a lack of sufficient mental capacity or significant health problems which may impact their judgment. To be successful in this type of claim, it needs to be demonstrated that someone has forced or pressured the testator to make the Will they made, as persuasion alone is legal.
Want of approval and knowledge: This is questioning whether the testator and fully understood and accepted the Will and its details when signing it. For example if the testator was deaf or blind when signing it this would be unlawful.
Lack of due execution: Making a claim on the grounds of lack of due execution means questioning if the Will was signed and witnessed properly. If it was not done properly this will render it invalid.
Forgery: It can be claimed that the signature on the Will that was made by the testator was actually forged by someone else making the Will invalid.
Fraudulent calumny: Here the testator could have been talked into excluding someone from the will under false pretences which renders the Will invalid.
Reasonable Provision Claims
- Inheritance (Provision for Family and Dependants) Act 1975 Claims
- A person may accept that a will is valid but still dispute that the provision made for them in a will, or under the intestacy rules us unfair.
- Certain categories of people can bring a claim for reasonable provision
This Act means that specific people can apply to the Court for access to finances from a deceased person’s estate such as:
- The deceased’s spouse or civil partner (or previous spouses or civil partners who are not remarried)
- If the deceased had an unmarried partner who lived with them
- If the deceased had a child or adopted child
- If the deceased had a person that they treated as a child
- If the deceased had someone that financially relied upon them.
We have successfully acted for estates when defending challenges to a will or where reasonable provision claims have been made.
As we also act for people challenging wills we are able to see both sides of an argument which can often help weed out and defeat unsuccessful claims at an early stage or where necessary reach reasonable settlements on behalf of the estate.
Whatever your situation, it is always best to discuss the matter with a specialist lawyer to give yourself the best chance of your defence being successful.
Email Contentious Probate specialist, Edward Powell or call 01206 766 333.