Fraud Blocker

Are you considering challenging a Will?

Written by: Keoghs Solicitors

Date: 28th February 2013

It is an upsetting time after a bereavement as you struggle to cope with the death of a loved one. The time can be fraught especially when trying to organise the funeral, attending to all of the paperwork as well as trying to identify the deceased’s wishes. This includes finding the person’s Will.

Identifying the contents of a Will can be particularly upsetting when the Will and bequests are not what you expected or were led to believe.

What can you do? What should you do?

If you believe that you have a valid claim on the estate, the first thing to do is to speak to an Inheritance and Wills expert who can provide timely and professional advice.

Where do you start? You need to confirm that you are legally entitled to contest the Will.

Typical reasons for a Will dispute and contest include:

The Will does not reflect the wishes of the deceased. This can be because it was not drafted correctly or contrary to the instructions of the deceased

The Will was not executed correctly, which is often a problem with homemade DIY Wills

The Will was signed under “undue influence”; you believe or have reason to say that the deceased was pressured at the time of signing the Will.

The deceased lacked the necessary mental capacity to sign or to give instructions for a Will, e.g. the person was suffering from dementia or a similar mental illness when the Will was made.

Even if a Will is valid, you may be able to claim against the solicitor or other professional if they drafted the Will negligently. Further, you may be able to claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Can you contest the Will under the Inheritance (Provision for Family and Dependants) Act 1975?

The effect of this Act is to allow the court to change the distribution of a deceased person’s estate after their death. Therefore, the court can alter what the deceased’s Will or the intestacy rules provided for.

The time limit for applications under the Act is 6 months from the date of the Grant. You will know this by asking the Personal Representatives if they have obtained a Grant of Representation and on what date. The court has the discretion to extend this time limit.

The deceased must have been domiciled in England and Wales.

You cannot claim for the deceased’s severable share of a property owned as tenants in common.

To make a claim, you must be one of the following:

Spouse or civil partner;

Former spouse that has not remarried;

A child of the deceased;

Treated as a child of the deceased;

Any person who, immediately before death, was being maintained by the deceased; or

Had been living in the same household as the deceased for two years prior to death.

If the above apply, the court has the discretion to make a ‘reasonable financial provision’.

It is important to seek specialist Wills and Probate advice from legal experts, as soon as possible because strict time limits apply and some claims have to be made very quickly.

We are here to help, so please get in touch.


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