The latest data from the Ministry of Justice shows that Will disputes are rising. A Will can be challenged on the basis that it is invalid for any of the following reasons:
- The Will has not been correctly executed - Normally a Will must be in writing (handwritten or otherwise) and must be signed by the person making the Will in the presence of two witnesses. It must then be signed by the two witnesses, in the presence of the person making the Will, after she or he has signed. As a consequence of the current coronavirus pandemic, Wills witnessed via video link are legally recognised (backdated to start on 31 January 2020) with this change due to remain in place until January 31 2022 or 'as long as deemed necessary'.
- The person making the Will lacked the necessary mental capacity - An individual will be considered to have sufficient mental capacity to make a Will if he understands the nature of the act of making a Will and its effect, the extent of his property and the individuals for whom he is morally bound to provide for, and the consequences of not providing for those individuals.
- The person making the Will lacked knowledge or approval of the contents of their Will - These claims invariably arise when the circumstances surrounding the making of a Will appear to be suspicious, so it must be proven that the person knew of, and understood the contents of, their Will.
- The person making the Will was subject to undue influence - Concerns may arise that they were pressured into making a Will they would not have made had it not been for the coercion of another.
- The Will is forged or fraudulent - The signature of the person purported to have made the Will has been forged either before or after their death or someone has missed out, or alternatively benefited, on the basis of misrepresentations made by another person.
- A claim may be made under the Inheritance (Provision for Family and Dependants) Act 1975 - This enables certain categories of persons to make a claim against an estate provided it can be shown that they were financially dependent on the deceased and that adequate provision was not made for them in the Will.
Any claim under the 1975 Act must be made within six months of the issue of the Grant of Probate.
The risk of a claim against an estate can often be reduced by seeking professional legal advice in relation to the preparation of a Will, and making a clear record as to the reasons for the decisions as to who should benefit, whether in the body of the document itself or a separate letter of wishes.
