When and how clients can contest a will
- List the grounds for contesting a will and why inheritance disputes are rising.
- Describe what a financial provision claim is.
- Identify out of court dispute resolutions and how claims can be prevented.
- List the grounds for contesting a will and why inheritance disputes are rising.
- Describe what a financial provision claim is.
- Identify out of court dispute resolutions and how claims can be prevented.
In recent years there has been a surge in inheritance disputes reaching court and attracting media attention, with dramatic headlines and human drama stories.
However, the cases which attract media attention are just the tip of the iceberg and do not account for the hundreds, if not thousands, of inheritance claims being brought every year which, despite never seeing the light of a court room, often result in hard fought disputes and settlements leading to the redistribution of a loved one’s estate.
So why has there been an upsurge in inheritance disputes?
One of the answers can be found in the changing socio-economic landscape we live in. Complex family structures can make the division of assets between second and third families seem contentious and create feelings of being hard done by.
The increasing value of estates is another contributory factor.
The older the person making or changing a will, the more likely it can give credence to an allegation of lack of mental capacity.On the one hand, increasing property prices have made relatively modest estates worth fighting for and, on the other hand, economic uncertainty incentivises would-be claimants to seek a greater share of an estate.
In any event, there is no doubt that society has become more aware of the ability to challenge a will and, according to court statistics, more willing to see a challenge through to what is, inevitably, a bitter ending at trial.
Inheritance disputes tend to focus on one of two areas: the first relates to claims for a greater share of an estate, and the second around the validity of the will itself, which can bring allegations of undue influence, lack of capacity to make a will and even forgery.
Grounds for contesting a will
Challenging the validity of a will is, as one would expect, evidentially difficult, given the person who made the will and is being challenged is no longer around and therefore unable to provide critical evidence.
However, when it comes to the letter of the law, there are various presumptions in favour of upholding a will which help avoid the courts becoming overrun with will validity disputes and protect our right of testamentary freedom.
Lack of due execution
For a will to be valid it must comply with requirements of the Wills Act 1837 which sets out that a will must:
