Losing a loved one is an incredibly difficult and emotional time. In addition to dealing with grief and making funeral arrangements, you may also be required to handle their estate, or be expecting to benefit from it.
What happens if you believe there is something wrong with the will? Maybe your concerned that it does now reflect their wishes, or you have been left out but believe you shouldn't have been. This is known as contentious probate. Head of Civil & Commercial Litigation, Andrew Leakey, at Jackson Lees is here to help you know where you stand.
There are 5 main claims that can be made when seeing to set aside a Will.
Lack of testamentary capacity:
This is the legal term to describe someone’s ability to make a Will. If someone is lacking testamentary capacity, it means they were not in a fit state to write their Will at the time it was done, making it invalid.
Undue influence:
This is when an individual forces or coerces someone else into changing their Will so it will benefit them.
Lack of want and knowledge:
This is if a person has executed a Will without knowing what was on it or what they were signing for. For a Will to be valid, the person making it must be aware of and approving of its contents.
Fraudulent calumny:
This is when a beneficiary of a Will makes untrue or malicious comments to the person making the Will regarding the character of another beneficiary with the aim to reduce the potential beneficiary’s entitlement, or exclude them altogether, to benefit themselves.
Fraud:
There are several incidents that can occur that could make a Will fraudulent. For example, if a person’s most recent Will is destroyed or hidden with an earlier one put in its place that benefits a beneficiary more. Or perhaps the person trying to claim the Will is valid knows it wasn’t witnessed, or that signatures were added later. In extreme cases, someone might make a Will pretending to be someone else.
Expert advice.
If you believe any of the above instances have taken place or have other concerns about the contents of a loved one’s Will, our experts are on hand to talk through your concerns and discuss your options.
Alternatively, you may seek to make a claim against the estate when you have been left out. In order to do this, you must fall into an applicant category as set out under the Inheritance (Provision for Family and Dependants) Act 1975. The people who can usually make these claims are:
- The spouse or civil partner of the deceased.
- A former spouse or civil partner of the deceased who has not remarried.
- A person who, for two whole years before the deceased’s death, was living in the same household of the deceased as a spouse of the deceased.
- Someone who was treated by the deceased as a child of the family (“family” may have been just the deceased and the person bringing the claim).
- Someone non-related who, immediately prior to the deceased’s death, was being maintained either wholly or partly by the deceased.
If you believe you may have grounds to set aside a Will or to claim a provision from an estate it is important to act as quickly as possible, as strict time limits do apply.
If you would like to talk to one of our friendly expert advisers, you can call us on 0151 282 1700 or make an enquiry.