It is a very difficult time when a loved one passes away. This feeling can be worse if the provisions of the Will are unexpected, or if there is conflict between the families over the distribution of the estate, leading to arguing over a Will.
There has been a surge over the last few years in claims arising out of Will disputes. This is due to a number of factors including: rises in house prices, people living longer and families becoming more complex with the high rate of divorce and second/third families.
Why Might Families be Arguing over a Will?
- The Will is unfair
The U.K. does not have forced heir-ship rules unlike many countries in Europe and therefore, there is freedom to make your Will as you wish. This can result in someone feeling disappointed that they did not receive anything from the Will. If evidence can be provided to show that the Will was not written correctly, there may be a chance to object the Will.
- The Will does not make reasonable provision for a particular person
Disappointed beneficiaries may apply to challenge the Will under the Inheritance (Provision for Family and Dependents) Act 1975. They would need to show that they fell within one of the categories under the Act, such as being a spouse or child and, also, show that reasonable provision has not been made for them. This can be someone who has been maintained by the deceased and was dependent on them for somewhere to live, for example.
If a successful claim is made, the court can make a number of different orders including a lump sum payment or transfer of a property. This is a growing area for co- habitees who had lived with the testator (the person who has written the Will) for at least 2 years.
- The testator did not have mental capacity to make the Will
The person making the Will must be of sound mind, memory and understanding when the Will is made. Where there is evidence of a testator’s mental illness or confusion, for example, a solicitor will look to obtain a medical report in order to assess the capacity to make a Will to reduce the risk of the Will being challenged.
- The testator was unduly influenced to make the Will in a certain way
Undue influence means that the testator was coerced into making a Will that they did not want to make. Sadly, there are individuals who will attempt to influence someone to make a Will in their favour. This person may not be a family member and could be someone who has been spending time with the testator over a number of years and slowly influencing them to benefit them in the Will. These types of disputes are famously difficult to prove.
- The Will has not been properly executed
This is a key area for disputes because the main witness to the execution of the Will has died. There are formal requirements for executing the Will, which are stated under section 9 of the Wills Act 1837. This means that if the Will does not comply with these rules, the Will is invalid. Challenges on technical grounds such as this need to be supported by strong evidence.
It is important to seek legal advice if there is dispute over a Will or if you feel that any of the reasons outlined above are affecting you.