Challenging a will

Jennifer Russell, private client expert, and Anjali Narshi, dispute resolution specialist, highlight some of your options.

Want of due execution

The first ground for challenging a will is ‘want of due execution.' In other words, you are concerned it has not been signed and witnessed correctly.

Whilst there are certain exceptions, the following rules usually apply:

• The person making the will should sign it. If this is not possible, they should make a mark such as a thumbprint, or direct someone to sign on their behalf in their presence.

• Nothing should be attached to the will (e.g., a covering letter attached with a paperclip).

• The will must show no signs of attempted destruction, such as tears.

Undue influence

Secondly, the contents of a will must represent the individual’s true wishes. If they were unduly influenced (through coercion or fraud) by someone else, this could invalidate the will.

Family and friends may try to persuade someone making a will as to how they should leave their estate, but it will not amount to undue influence unless it can be proved that the will no longer reflects the individual’s true wishes. Undue influence claims can be difficult to prove, as the testator will have died before the challenge is brought.

Lack of mental capacity

For a will to be valid, the testator must also have the necessary mental capacity. If you believe the testator did not possess the necessary mental capacity, it may be possible to challenge the will’s validity.

Reasonable financial provision was not made

Finally, you can also challenge a will on the basis that ‘reasonable financial provision was not made.’ Claims in this area are open to:

• Spouses and civil partners (both current and former).

• Children (and those treated as a child of the family by the testator).

• Financial dependants.

• Cohabitees who have lived with the testator for at least two years.

Claims are assessed on various factors, including wealth. If your claim is successful, a judge can set aside some, or all, of the will’s provisions and order that financial provisions be made from the estate. It is important to note that you only have six months after grant of probate to make a financial provision claim.

The above grounds are not an exhaustive list, so it is always advisable to seek specialist legal advice if you wish to challenge a will.

Anjali Narshi E: anjali.narshi@lodders.co.uk T: 01789 206137

How solicitors add value in the ‘no-fault’ divorce era

’No-fault’ divorce legislation has been introduced to replace the previous requirement of proving a spouse was at fault for the breakdown of a marriage. It is intended as a ‘streamlined’ divorce procedure, outside of court, which allows couples to separate amicably.

Whilst no-fault divorce has brought positive changes to the divorce process, the need to seek expert legal guidance, support, and advice from solicitors remains. Family law specialist and partner at Lodders, Vivienne Middleton, explains.

What is no-fault divorce?

Unlike fault-based divorces, which required proving adultery, desertion, or unreasonable behaviour, no-fault divorce aims to promote amicable separations, eliminate the risk of defended divorce litigation, and protect the emotional well-being of all involved, especially children.

No-fault divorce may simplify the legal procedure, but it is still essential to consult a solicitor. Some key reasons for this are:

1. Fair financial settlements: The online divorce procedure succeeds in changing a party’s marital status to divorced but does not address the distribution of financial assets or spousal maintenance. The advice of a solicitor cannot be overstated in ensuring entitlements are understood and a fair settlement is achieved.

2. Future financial certainty: A final order (formerly known as the Decree Absolute) will dissolve the marriage, but it is not sufficient without a financial remedy order to achieve financial certainty. A financial remedy order cannot be obtained via the online divorce process and should not be entered into without first seeking advice from a solicitor.

Jennifer Russell

T: 01789 206142

3. Specialist expertise: Solicitors are experienced professionals with in-depth knowledge of family law. We can guide you through complex legal procedures, ensuring your rights and interests are protected.

4. Procedural compliance: Divorce procedures involve various legal steps, deadlines, and documents. Solicitors ensure all legal requirements are met promptly, to prevent potential delays and complications. We also help you navigate the complexities of litigation to ensure advice and representation is provided, paperwork is completed, and clients are supported, to achieve a fair outcome.

Vivienne Middleton

E: vivienne.middleton@lodders.co.uk

T: 0121 200 0890