5 minute read
DMH Stallard
WILL DISPUTES – your questions answered
Jennifer Ray, Partner at DMH Stallard, and expert in managing will disputes and contentious probate, provides answers to the top questions clients ask when they are faced with a family dispute over a will
Will disputes are increasingly common and it can be a very emotional time. If you’re involved in a dispute because you have been left out of a will, didn’t receive what you expected or think the will is wrong in some way, you will have a lot of questions. In this article we have answered the most common questions that our solicitors are asked.
1Who can dispute a Will? In short, anyone who is a beneficiary under a Will (someone who stands to benefit or inherit). Additionally, it’s anyone who would otherwise be entitled to an inheritance if the Will was invalid, such as through intestacy (where there is no Will) or under an earlier Will. Some people may also be able to claim for financial provision if they have not been adequately provided for after the death of someone they were financially dependent upon. This will be covered in a later section. 2 How can I find out if there is a Will? A search can be carried out through companies like the National Will Register. This is a good idea if you have not found a Will in the deceased’s papers. If you know that the person who died regularly used a firm of solicitors for other matters, it’s definitely worth contacting them to check if they hold a Will.
3What if there is no Will? If there is no Will, the Estate will be distributed in accordance with the rules of intestacy.
These rules are quite rigid, but in essence a spouse and children would be provided for first. In the absence of any spouse or children, matters can get more complicated, and advice might be needed from a genealogist to identify those entitled to inherit, including blood relatives and adopted children. 4 What if I have been cut out of the Will? If you can prove that the Will is invalid and that you would have inherited under an earlier Will or under intestacy, you may have a claim.
You may also be able to make a claim under the Inheritance Act 1975 which provides that certain categories of people should be provided for including: n spouses/civil partners, n co-habitees (of two years or more), n ex-spouses and ex-civil partners, n children of the deceased and children of family including adult children, and n any other person maintained wholly or partially by the deceased immediately before their death.
In an Inheritance Act claim, the Courts weigh up a number of factors to determine what ‘reasonable financial provision’ is. This will include looking at the claimant’s needs and means, the size of the Estate and the needs of any other beneficiaries or claimants.
Inheritance Act claims must normally be made within six months of a Grant of Probate being issued.
5How do I know if the Will is valid? The Wills Act 1837 sets out the criteria for a valid Will. This includes the key requirements that the Will is in writing and signed by the testator (person making the Will), and that the signature is made or acknowledged by the testator in the presence of two or more witnesses present at that time. The witnesses must also usually ‘attest’ the signature (affirm it to be true or genuine) and sign the Will as well.
The validity of a Will can also be disputed in the following circumstances: n There is evidence that the testator did not have capacity to make a Will n There is evidence of duress or undue influence upon the testator in making a Will n There is evidence of fraud or forgery n There is evidence that the testator (the person who made the will) may not have known or approved the contents of the Will 6 What if the Will writer had dementia? The presence of dementia does not automatically mean someone does not have capacity to make a Will. The Courts consider that a person has testamentary capacity if they: n Understand the nature of the Will and its effect; and n Have some idea of the extent of the property of which they are disposing of under the Will; and n Are aware of the persons for whom a testator would usually be expected to provide (even if they choose not to) and be free from any delusion of the mind that would give them reason not to benefit those people.
Capacity to make a Will is presumed unless there are reasonable grounds to consider that someone might not have capacity. The presence of a condition like dementia may give rise to reasonable grounds but this won’t always be the case. 7 I am an executor – what do I do if there is a dispute? Executors should remain neutral if there is a dispute. If you are an executor and you are also a beneficiary wishing to dispute a Will or defend a dispute, you may need to get separate advice in each of these separate roles.
8Can we agree to change the Will after someone has died? Adult beneficiaries can agree to make variations to the Will provided all beneficiaries affected agree. A Deed of Variation may be possible within two years of the death. If any beneficiaries or potential beneficiaries are under the age of 18, the Court will need to approve any changes.
9What happens to a Will if someone gets divorced or remarries? Whilst marriage will automatically revoke any earlier Wills, divorce does not. So it’s very important that people think about revisiting their Will when they get married and if they are getting divorced. Although a Will remains valid after divorce; in the event that a death occurs after divorce, the ex-spouse would not usually be able to act as an executor or inherit under a Will made during the marriage.
10 I want to dispute a will – where do I start? You may wish to enter a ‘caveat’ at the Probate registry to stop a Grant of Probate being issued until the dispute has been resolved. You will need to gather evidence and seek independent legal advice.
It is usually more cost effective to get expert advice as early as possible.
