Will disputes have become more prolific in recent years, partly due to the increase in complex family arrangements and the increase in property values.
There are broadly speaking two types of claim that may arise:
- First, someone who is a disappointed may be able to challenge the validity of the Will.
- Second, even if the Will is valid they may be able to bring a claim if the Will does not make a “reasonable financial provision” for them, which can give rise to a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
This section deals with the first of these two basis of challenge. For information regarding claims under the Inheritance (Provision for Family and Dependents) Act 1975 please follow this link.
There are several grounds upon which the validity of a Will can be challenged. These grounds are as follows:
- The Will may not comply with the necessary formalities;
- There may be mistakes in the Will;
- The person making the Will (the “testator”) may not have had had “testamentary capacity” when the Will was made;
- The testator may not have known or approved of the terms of the Will. In other words, they may have signed the Will but not understood what they were signing.
- The testator may have been subject to undue influence or coercion and did not therefore act under their own free will;
- The Will may be a forgery;
If a validity challenge is successful, the Deceased’s previous Will takes effect or, in the event that there was no prior Will, the intestacy rules will apply.
Our Dispute Resolution team have extensive experience in both pursuing and defending all types of validity challenge and regularly act for both Claimants and Estates in the High Court. We will aim to identify your goals and the most effective ways of achieving your aims at the outset of your case. We will try to resolve your case without the need for court proceedings wherever possible and we are skilled in all forms of Alternative Dispute Resolution (including mediation).
Is it possible to challenge a will?
Yes. There are a number of circumstances in which it is possible to challenge the validity of a Will. These include a lack of capacity or knowledge or approval of the testator, undue influence or fraud. Should you have any concerns regarding the validity of a Will, you should obtain legal advice as a matter of urgency.
What if I have been left out of a Will or am unhappy with the amount that has been left to me?
Under the Inheritance (Provision for Family & Dependants) Act 1975, it is possible for certain individuals to pursue a claim if they can demonstrated that the financial provision made for them is inadequate.
What is a Caveat and how does it work?
A caveat is a legal document issued by the Probate Registry that prevents a grant of probate being issued. The caveat will remain in place for a period of 6 months (unless voluntarily removed by the person entering it or by an order of the Court. A caveat can be renewed after 6 months. Caveats should not be obtained lightly or without justifiable reason as the Court can impose financial sanctions where it considers that a caveat has been improperly obtained. It is therefore advisable to obtain specialist legal advice before seeking to lodge a caveat.
What options are available where an Executor/Administrator is not carrying out their role properly?
There are a number of possible outcomes such as the Executor/Administrator agreeing to stand down or be replaced, the Executor/Administrator undertaking to carry out their function going forward and even the removal or replacement of the Executor/Administrator. No two situations are the same and therefore consideration must always be given to the most favorable outcome given the specific facts of the matter.
Would I have to attend a court hearing if I pursue a claim?
Not necessarily. Our objective in any dispute is to seek to a successful resolution as quickly and cost-effectively as possible. This can include seeking to negotiate informally, attending a mediation and other methods of alternative dispute resolution. The vast majority of disputes do not reach a final court hearing.