Finding out you have been left out of the will of a loved-one can be a difficult and emotional experience. However, you may be able to challenge the will if you believe you have been unfairly left out. Darwin Gray’s specialist contested wills and probate solicitors explain what to look out for, and how to resolve your claim.
The first step is to obtain a copy of the will and review the provisions it contains, in order to understand who is named as the executor, who the beneficiaries are, and how the assets of the estate are to be distributed. You should also look out for any specific gifts that have been made to other individuals or organisations, and whether the testator – the person who made the will – explained in the will or in a side-letter the reasons for not making gifts to certain people.
At the same time, you should also try and get a copy of the testator’s previous will, because if the will you are challenging is declared invalid, it is likely that the testator’s estate will be distributed in accordance with that previous will.
If you believe that you have been left out of the will unfairly, or you have been left less that you were expecting to receive, you may have grounds to challenge the will. Some of the typical reasons for challenging a will include:
1. Lack of Testamentary Capacity:
This means that the person who made the will was not able to understand the nature and effect of their will at the time it was made. Often a testator who lacks testamentary capacity is suffering from some form of cognitive condition or brain injury, so medical evidence will be required to prove this.
2. Lack of Proper Execution:
in England and Wales, if the will was not properly signed and independently witnessed it will not be valid.
3. Undue Influence:
if the testator was pressured or coerced into making the will or putting in certain provisions, or was not able to make decisions about its provisions freely and independently, it will not be valid.
4. Fraud or Forgery:
This means that the will that the executor is trying to prove is not the genuine will made by the testator, and instead may have been written or amended without their knowledge or consent.
If you believe that you have grounds to challenge a will and believe the will the executor is trying to prove is invalid, you should seek advice from a solicitor who has experience in wills and probate disputes. A contested wills solicitor will be able to assess the strength of your claim and advise you on the best course of action to resolve the dispute quickly and efficiently.
In most cases, it is possible to reach a settlement with the other parties who have an interest in the will and the estate without the need to issue a court claim, saving significant time and expense. This usually involves the parties engaging in correspondence and sharing information and documents with one another about the case, in order for each to assess their chances of success, making settlement offers and perhaps meeting or attending a mediation.
If settlement terms cannot be agreed, it may be necessary to issue a claim in the High Court. This involves presenting evidence in support of your claim and arguing that the will is invalid. If the court finds in your favour, the will may be declared invalid and the estate may be distributed according to a previous valid will, or if there is no previous valid will, the laws of intestacy.
Don’t Forget –
it’s essential to check what you will gain from successfully challenging a will. If you are not listed in the previous valid will, or if you are not within the classes of beneficiaries that would benefit under the intestacy rules, there may be no reason for you to go to the time, effort and expense of bringing a claim.