Langleys will dispute solicitors in York and Lincoln understand that the death of a family member or someone close is a distressing time. Unfortunately, this can be made all the more distressing for some people when they discover that there is an issue with the will of the deceased and contesting the will becomes a consideration.
1.The will does not provide enough for the claimant to live on;
3.The deceased did not have mental capacity to make a will;
5.The deceased made a promise before they did which is not included within the will.
There may be other options available to contest a will in addition to the above, and they should contact us for advice if their issue is not included above.
Will disputes can be complex. This outline is intended to be a brief introduction to some of the more important points that a claimant should bear in mind. This guide to contesting a will is not intended to constitute formal legal advice, and anybody thinking about disputing a will by contested probate should seek specialist legal advice as to their particular situation and circumstances.
If a claimant was dependent upon the deceased, and the will does not leave them enough for them to live on, then they may be entitled to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
We have produced a separate guide on such claims, which will be available soon here.
Undue influence may exist where the deceased was coerced into making the will, or coerced into making particular gifts under their will.
Not every action will amount to undue influence. Family members may have dropped subtle hints to the testator, or they may have reminded them about previous favours or warned them about how they are relying upon the testator’s estate to avoid being destitute. Whilst such actions may be considered unsavoury, they are unlikely to amount to undue influence.
Undue influence usually occurs where a testator is psychologically or physically pressured into giving a particular person a larger share of their estate than they otherwise would have done. In short, the question is whether the testator felt forced into making a particular gift that they did not actually want to make.
In order to make a will, an individual must have mental capacity. The person must understand the importance and purpose of a will, along with a general awareness as to the assets that they have and the people to whom they ought to consider making legacies.
Lack of capacity can be caused by both mental and physical illnesses. For example, Alzheimer’s disease or other types of dementia can cause somebody to lose the capacity to make a will. Some people have ‘good days’ and ‘bad days’ depending upon their illness and their medication. This means that some people may have capacity to make a will on some days but not others.
Evidence of lack of capacity is usually obtained through assessment by medical experts based on their opinion of the testator's mental health at the time the will was made. Medical records will therefore be crucial, as will any evidence from people who were in contact with the testator at the time that the will was made.
Forged wills are, thankfully, rare. A forged will could exist from a family member fraudulently producing and signing a will which the deceased had no knowledge of. Sometimes, ‘professional’ fraudsters can target isolated elderly people and obtain information which they then use to prepare a forged will.
If a will can be proven as a fraud, which often requires the use of handwriting experts, then the court will set aside the will.
Sometimes, the deceased will make a promise before their death. For example, they may say that they will give the claimant an asset or a particular sum of money. There can then be disappointment when the will does not contain the gift that the claimant was promised.
If a claimant has relied upon the promise made, and acted upon it to their detriment, then the claimant may be able to make a claim against the estate. An example would be where the deceased promised that they would give their house to the claimant, and in reliance upon that promise the claimant spent money on that house before the testator died. If the will then gave the house to somebody else, the claimant may be able to argue that the deceased cannot go back on their promise.
There may be other routes to contesting a will. These can include:
1.Constructive trusts, where a claimant funded the purchase of an asset which was held in the deceased’s name but in reality belonged to the claimant;
2.Disputes with executors who fail to properly administer the estate; and
3.Negligent will drafting.
It is always preferable for a claimant to raise a will dispute before the assets of the estate have been distributed. Once distributed, it may be difficult for the assets to be recovered. It is therefore sensible for a claimant to seek legal advice as soon as possible if they think that they may have a claim. Langleys are experienced in will disputes and our contentious probate solicitors based in York and Lincoln have the right skills and experience to help make your dispute a successful one.
Whatever your situation, please contact us to see how we can help. You can call us for a free initial consultation:
Contentious Probate York Office - 01904 610886
Contentious Probate Lincoln Office - 01522 888 555