Probate lawyers are urging the government to introduce reforms to make it easier for families to access the ‘digital assets’ of deceased relatives. A new report carried out by STEP – the professional body for inheritance planning advisers – highlights the extent of the distress caused by being cut off from digital assets when family members
Challenging a Will
With an ageing population and more people living in less traditional family set ups it is becoming increasingly common for people to challenge wills and make claims on the estates of their deceased relatives.
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Challenging a will and making a claim on an estate are two quite different legal matters. The former is made on the basis that a will is not valid for one reason or another whereas the latter is for financial provision from that estate on the basis that a person has not been adequately provided for by the will, or rules of intestacy, which set out how a persons’ estate is divided if they do not have a will.
Under English law wills can be challenged for any one or more of the following reasons:
- Lack of proper formalities
- Lack of capacity
- Lack of knowledge and approval
- Fraud or undue influence
- Subsequent revocation
Reasons for challenging a will
Lack of proper formalities
For a will to be valid it must have been written and completed correctly.
It must be in writing and signed by the person making it (or if they cannot sign then by someone else on their behalf and at their direction), it must appear that the person making the will intended his signature to validate the will. The signature must be made or acknowledged in the presence of two or more witnesses at the same time. Both witnesses must sign the will or acknowledge his signature in the presence of the person making the will and of each other.
The legal presumption is that if a will appears to have been completed correctly it has been unless there is evidence to the contrary.
Lack of capacity
It is essential that, at the time of making the will, the person making it understands and approves the nature and effects of the will, knows the extent of the property he holds, appreciates the impact of including or excluding certain people and is not suffering from any mental incapacity which may influence their views.
A person is presumed to have mental capacity unless there is evidence otherwise. Once a person is found to lack mental capacity it is presumed that state of affairs will continue unless there is evidence to the contrary. This is commonly due to Alzheimer’s or other forms of dementia.
Lack of knowledge and approval
A person must know that they are signing their will and they must approve of the contents of that will.
A number of problems can arise where there is a mistake in the will, or where the person making the will suffers from a condition such as blindness or deafness or illiteracy or where the circumstances surrounding the signing of the will are suspicious.
Fraud or undue influence
A will can be challenged if it is believed that it was forged or fraud has taken place.
It can also be challenged if it is believed that the person making it was unduly influenced into making it. There are no presumptions of undue influence and whoever alleges it must prove it which can be very difficult.
A will can be intentionally revoked (cancelled) by the person who made it by destroying the document with the intention that it is revoked, by written confirmation that it is revoked or by signing a later will which revokes earlier wills.
A will is also revoked by entering into a marriage or civil partnership unless the will is specifically worded so that it will not be revoked by an intended marriage or civil partnership.
If a will is found to not be valid for any one or more of the reasons set out above it will be set aside and the estate will pass in accordance with any valid earlier will, or in the absence of any valid earlier will, in accordance with the rules of intestacy.
A professionally drawn up will prepared by a regulated legal advisor who makes appropriate checks and keeps relevant records is much less likely to be successfully challenged than a homemade will. If you are concerned that your will might be challenged we can offer advice as to how best ensure that it will be upheld and your wishes will be followed.
We can also advise you if you are the executor or beneficiary of a will that is being challenged or if you believe that a will is invalid and you would like to challenge it.
Related Resources (View more resources)
Presentation slides from the webinar ‘Understanding inheritance and property – how to avoid disputes and claims’ which took place on Wednesday 7th July 2021.
Learn why you should write a will with Edward Gill and Radha Chauhan.
Presentation slides from the webinar ‘Wills and inheritance tax planning – putting the right protection in place’ which took place on Wednesday 2nd June 2021