The rise in contested probate cases and disputing Will enquiries over recent years has been attributed to increasing wealth through increased house prices, complex family relationships and a rise in homemade Wills. The periods of lockdown during the COVID-19 pandemic have made assessing the capacity of those making a will, and ensuring they are not being coerced, an additional challenge.
Contested probate solicitor, Emerald Priscott reviews under what circumstances can a Will be disputed, what legal action you can take if you feel a loved one’s wishes have not been followed and highlights the risks of DIY Wills.
Q1. What are the grounds for disputing a Will?
There are 2 bases for contesting a Will.
- The Will is invalid.
- It fails to make “reasonable financial provision” (RFP) for certain people. Common challenges to validity including lack of capacity, lack of knowledge and approval, undue influence, and non-compliance w/ formalities.
If the Will appears to be valid, certain people may be able to make a claim under the Inheritance Act if “reasonable financial provision” (RFP) has not been made for them in a Will.
It is also important to remember that claims need to be made within six months of the Grant of Probate, otherwise you need permission from the Court.
Q2. What reasons could enable the wishes in a Will not to be carried out?
If the Will is found to be invalid, the wishes will not be followed. The default position is to revert to a previous Will, or if there is not one, the intestacy rules.
If a claim under the Inheritance Act 1975 for “reasonable financial provision” (RFP) is successful, the Court has a wide discretion to redistribute assets to produce a fair result.
Q3. Is it possible that remote signing and witnessing of Wills during the pandemic will result in higher dispute levels?
The Government introduced temporary rules to allow people to remotely witness a Will by using video conferencing technology, as a result of the Covid-19 pandemic. With changes comes uncertainty and could mean an increase in Will validity challenges.
Our previous article ‘Making a Will in a pandemic’ reviews procedures to ensure a Will is properly witnessed during the Coronavirus pandemic.
If there is a challenge to the Will, a witness may be asked about their recollection as to the Will maker’s state of mind, appearance and/or any comments made. This information could be important and may be missed if someone is not physically present. For example, without being physically present, the witnesses may not know if there is anyone else present with the person making the Will which could lead to arguments about undue influence or coercion.
Q4. How could you defend a Will to ensure the wishes are followed?
There are steps a person making a Will can take steps to minimise their Will being challenged after their death. A Will specialist will be able to advise you on the steps you can take to reduce the chances of a successful claim being made against your estate.
Top tips when updating or making a Will.
- get specialist legal advice!
- make sure the Will complies with legal formalities.
- explain your decisions if you have decided to leave someone out.
- consider preparing a letter of wishes to accompany your Will.
- consider a small gift rather than complete exclusion.
- ask GP to confirm requisite capacity.
- consider a “no contest clause”.
- if you leave money to a charity, try and ensure a link is made during your lifetime.
- do not forget about your Will – review regularly!
- make sure old Wills are destroyed.
Q5. Why should you use a solicitor to draft a Will rather than an unregulated service or do-it-yourself?
DIY Wills or Wills that are prepared by unregulated services are risky. Unregulated providers may not hold the relevant insurances meaning there may be little redress for beneficiaries or loved ones if, after someone has died, you discover the Will has not been drafted correctly or there are issues. There are strict formalities that need to be complied with when making a Will – if they are not, the Will may be invalid.
Although a DIY Will kit or a Will through an unregulated service may seem like a better and cheaper deal it could leave your estate open to greater costs if your Will is later challenged or if the Will is not valid. See our previous article on Why the “DIY” approach might cost you in the long run
A Will is arguably one of the most important documents to have in place so save the DIY for the home!
Our Steeles Contested Probate specialists offer an initial agreed fee consultation to discuss your situation and your options moving forwards. If you have concerns about the validity of a will or would like to discuss any of the topics raised in this disputing a Will Q&A, please call Emerald on 01603 598000 or email firstname.lastname@example.org.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.