How To Contest A Will and Win

If you have found out that you have been cut out of a will, or been left out all together how to challenge a will ?

The most important step is to seek immediate legal help, from a law firm specialising in contesting wills like ourselves. It is a complex area with lots of pitfalls along the way and acting quickly can be crucial in preserving estate assets  whilst time limits are very strict for certain types of claims. For example, a claim under the Inheritance Act 1975 for reasonable financial provision from an estate is just 6 months from the date of when probate is issued.

So how can you contest a will ? in all cases the starting point is the will itself.

Valid Will Requirements

For a will to be valid it must comply with the wills act 1837, in so far as the will must be :-

  • in writing
  • signed by the testator and
  • the signature of the testator must have been witnessed by two witnesses ( at the same time )

Common problems we encounter are as follows :-

  • wills not be signed
  • the original will maybe lost
  • there maybe handwriting on the will after the will has been signed
  • there maybe an issue with the witness eg. signing at different times
  • there is an issue with the witnesses – a spouse must not act as a witness to will in which their partner is a beneficiary
  • interpretation of a will – the will is unclear
  • error with the drafting of the will

If you need help with an issue that has arisen on a will – call us now – we are experienced at handling all issues surrounding wills. Call us on 0844 740 1637 or send an enquiry to tim.murden@tmsolicitors.co.uk

Contesting a will lack of capacity

The Person making the will must have had the capacity to understand that they were actually making a will, their estate and the persons to whom they want to leave their estate to.

Typically, we find that, wills maybe altered close to the person dying, issues arising with unexplained gifts to non-family members, or there are genuine reasons to suspect that the person making the will did not have the capacity, as they may have suffered from dementia or alzheimers. If this is the case we would typically arrange a review of the medical records to determine exactly what the records stated, and what steps were taken by the person making the will to ensure the testator had the capacity. This is known as the golden rule and requires extra caution when making a will for a vulnerable or elderly person.

Contesting a will undue influence uk

The person alleging undue influence must prove it.

Some examples of undue influence include when the testator is forced into making a will under threat, or maybe blackmailed or coerced.

To prove undue influence it is often the case that witness statements will be required from family and friends who can give an insight into the normal decision making of the testator and how this suddenly changed due a third party – we encounter alot of cases involving carers influencing a person to make a will or a family friend saying they will withdraw support if they are ot left in a will.

If you believe that undue influence may have arisen please contact us on 01482 429985 and speak with Tim Murden who heads our contentious probate team. You can e-mail tim at tim.murden@tmsolicitors.co.uk

Claims for financial provision

Claims can be made for is known as reasonable financial provision under what is known  as the Inheritance Act 1975.

To make a claim you must fall within the category of claimant entitled to do so, this is typically children, wives, or someone that was financially dependant.

In summary, the Court has a wide discretion to award sums which it considers to be fair and reasonable having regard to all the factors in each case. The Act lists a series of matters which it must have regard to including the age of the parties, financial needs,the size of the estate, moral reasons as well as any disabilities of the parties. This type of claim is fairly common and we have considerable expertise in this area of law.

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