Inheritance TaxJul 3 2019

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.
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CPD
Approx.30min
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CPD
Approx.30min
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CPD
Approx.30min
When and how clients can contest a will
  1. Be in writing, and signed by the person making the will (or by some other person in his/her presence and by his/her direction).
  2. It appears that the person making the will intended by his signature to give effect to the will.
  3. The signature is made or acknowledged by the person making the will in the presence of two or more witnesses present at the time. 

If it can be proved that a will has not been executed in accordance with these requirements, then it will be invalid and could bring into play any previous valid wills or the rules of intestacy, which govern how an estate should be distributed in the absence of a valid will.

Lack of testamentary capacity

Challenges to wills based on lack of capacity have increased almost hand-in-hand with our ageing population.

The Office for National Statistics has predicted that by 2066, 26 per cent of the UK’s population will be aged over 65.

Naturally, the older the person making or changing a will, the more likely it can give credence to an allegation of lack of mental capacity. 

The legal test for capacity to make a will dates back to the 1870 case of Banks v Goodfellow and requires anyone making a will to:

  1. Understand the nature and effect of making a will;
  2. Understand the extent of the property of which they are disposing;
  3. Understand and appreciate the claims to which they ought to give effect, and;
  4. Must not suffer from a “disorder or delusion” which could bring about a disposal they would not otherwise have made.

Inevitably, as age-related illness rise, claimants seek to attack wills on the basis that the person making the will may have been suffering from a “disorder or delusion” of the mind which could invalidate the will.

One way to avoid these allegations is to obtain a medical opinion at the time of preparing a will where capacity could be brought into question at a later date.

Interestingly, the same level of capacity is required in order to revoke a will as is required to make one.

Lack of knowledge and approval

A person making a will must know and approve of the contents of their will before it is executed.

A claim of "lack of knowledge and approval" is often combined with a claim that the person making a will did not have the requisite level of capacity.

Generally, a contemporaneous record of someone reading over their will in front of their lawyer and witnesses should be sufficient to rebut this kind of claim.

Undue influence

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