A Will is the best possible way to ensure that your assets are distributed precisely according to your wishes after your death. However, there are a number of different factors which can allow for a Will to be challenged…
The simplest form of challenge is where there are grounds to believe it is invalid. There are many reasons a Will may be proved invalid; from it not having been signed, or it not being witnessed correctly – eg by the wrong number or type of witnesses, or in the wrong way.
One of the most common reasons for a Will being contested is on the grounds of a ‘lack of testamentary capacity’ – in other words, challenging whether the ‘Testator’ (the person whose Will it is) was “of sound mind” at the time the Will was written. Essentially, in order to pass the ‘sound mind’ test, it should be demonstrated that the Testator understood they were writing a Will, they could identify the assets they owned that would be distributed by the Will, and they were aware of the consequences of including or excluding people from their Will.
Increasingly Wills are being challenged on the basis of a ‘lack of knowledge and approval’, often where a ‘lack of testamentary capacity’ may be more difficult to prove. This claim can be made where it is believed that the Testator was not completely aware of the Wills contents, and often comes about when a person who helped prepare the Will is found to have been left a substantial gift in it.
Along similar lines, a Will can be challenged if it is believed to have been written under ‘undue influence or duress’, or if it is believed to be fraudulent or to have been forged.
If a Will is believed not to reflect the actual intentions of the Testator (the person whose Will it is) it can be challenged on those grounds too. This could be due to a clerical error – which might be as simple as a wrong or missing word, or it could be because the person preparing the Will failed to ascertain or understand the Testator’s actual wishes.
Finally, a Will can be challenged by those who have been left out of the Will if “reasonable financial provision” has not been made for them, when they believe it should have been. The success of such a claim, however, is dependent on the claimant proving that they could reasonably have expected that their ‘maintenance costs’ would have been met by the deceased.
Since the financial crash in 2009 the incidence of challenges on Will has increased more than eight-fold. This is also partly due to the massive increase in house prices over the past couple of decades. As a result, it is vitally important to take professional advice and to get your Will written by an experienced estate planner, to avoid as far as possible the chance of it being challenged later on.
Heir Tight Wills helps clients put in place robust provisions and valid documents, to protect their loved ones and their assets both during their lifetime and after their death, and reduce the chance of post-death dispute. For a FREE Consultation to discuss writing or updating your Will & estate planning provisions, contact Rachael Rodgers on 0845 519 7585, or CONTACT US via email.
