Arguing over a Will – 5 most common reasons
When a loved one passes away it is very difficult time but this feeling can be made worse if the provisions of the Will are unexpected or there is conflict between the families over the distribution of the estate.
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 as there are now more estates worth fighting over, people are living longer and as they do the mental decline means they can be more vulnerable to undue influence and irrational decisions and finally families are becoming more complex with the high rate of divorce and second/third families.
The main reasons families tend to argue over a Will are set out below:
- The Will is unfair
This country does not have forced heirship rules unlike many countries in Europe. This means that technically speaking 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. The Will being unfair will not be enough on its own. However, if you can provide evidence of the reasons below (or show the Will was not drafted correctly), you may have prospects of objecting to 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 under the Will. It can also 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 have lived with the testator 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 requires the testator being 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 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.