Can I Challenge A Will?
May 29, 2015
Leaving a Will is supposed to ensure that your family remain protected and looked after when you die. However, sometimes there are ambiguities that can call into question the validity of a Will. Even if there are ambiguities, what can you actually do about it?
It really does depend on the circumstances, but the legal requirements for challenging a Will are pretty straightforward.
The first challenge will be whether the proper formalities were carried out during the Will making process. The law states that a Will must be made in writing and be signed by the person making the Will, known as the testator. In addition, the signature of the testator needs to be witnessed by two independent people who are not family members, nor are they named as beneficiaries of the Will, who also sign the Will.
If any of these legal provisions have not been followed, there are grounds to challenge the Will as it is not valid.
In addition to the need for a Will to meet the legal requirements listed, the person making it must have the capacity to make the Will. If you want to challenge a Will on the basis that your family member did not have capacity whilst making their Will, you will need to satisfy the court that there was a lack of capacity when they made it.
Anyone making a Will must understand they are making a Will and that it will be used to distribute their assets. They need to understand the value of their estate and how the Will they are making affects anyone with a claim (or not!) on the estate.
A Will may also be challenged if it is felt that the person making it only did so under duress or was subject to undue influence.
There is a limited group of people who are able to challenge a Will on the basis that it did not make reasonable financial provision for them – for example, spouses, partners or cohabitees or anyone maintained by the deceased at the date of death.
Finally, there have been cases where a Will has been faked or forged and you can challenge the Will in these circumstances.
When a challenge has been made to a Will, there has to be a decision about what happens to the estate. The decision may be to move to an earlier Will, particularly where there was a change to the Will just prior to the testator’s death or where there is no earlier version, the rules of intestacy will apply. This means the estate will be divided according to the law.
There are different time limits that apply for challenging a Will depending upon the type of challenge that is made. For example, if the Will fails to make reasonable financial provision for someone who was entitled to expect it, proceedings must be issued within 6 months of the date of the Grant, otherwise, usually, any claim will then be out of time. There are much longer time periods for challenges for other reasons but it is always best to get early legal advice and certainly before the Estate is distributed.
Legal advice from an experienced Wills and Probate solicitor experienced in dealing with disputed Wills and Estates. It is essential to ensure that you know exactly where you stand legally.
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