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Brief Guide to Will Disputes


In recent years, there has been an increase in the number of cases where Wills have been disputed.

This blog gives a brief overview of the some of the grounds of claim – but there are others!

Forged Will

This one is pretty obvious. If the Will was not genuinely made by the person named as the Testator (the person making and signing a Will), it is not valid. Once the Will has been found to be a forgery, the deceased’s estate will pass under any previous Will or if none, under the rules of intestacy.

It is also a serious criminal offence to forge a Will which could lead to the forger spending several years at Her Majesty’s Pleasure!

Lack of Testamentary Capacity

A valid Will requires the maker of the Will (the Testator) to understand three things:

  1. The nature and effect of a Will

  2. Have an approximate idea of what assets he has and their approximate value

  3. Knows which people who should consider as beneficiaries

This is the test set out in the 1870 case of Banks v Goodfellow. Although an old case, it has been reconsidered by the Courts recently, particularly since the test for capacity is not the same as in the Mental Capacity Act 2005, but the courts have confirmed the Banks v Goodfellow test for Wills.

If the Testator lacked the required capacity to make a Will, it is invalid. The estate will pass under any earlier, valid Will or under the rules of intestacy.

Undue Influence

A Will may be found to be invalid, even though it is not a forgery and the Testator had testamentary capacity, if it can be shown that the Will was the result of another person unduly influencing the Testator to make a Will in different terms from what he intended.

Proving undue influence is quite difficult. However, when proved the Court will generally declare the entire Will invalid so that the estate will pass under a previous Will or the intestacy rules. Sometimes, though, the Court will declare only the particular gifts made as a result of the undue influence to be invalid so the other gifts made under the Will are unaffected.

Fraudulent Calumny

This is a variation of undue influence. It means that another person poisoned the mind of the Testator by telling him lies about a potential beneficiary. As a result, the Testator makes no provision, or he makes less provision, for the potential beneficiary than he would have otherwise.

If proved, the entire Will is likely to be set aside.

Inheritance (Provision for Family and Dependants) Act 1975

This is one of the most common types of claim. The Act (commonly known as the Inheritance Act, for short) permits certain categories of people to argue that the Will does not make sufficient financial provision for them and that the Court ought to make an Order for a financial payment or property transfer to be made, even though there is none in the Will, or is greater than the legacy in the Will.

It is different from the other claims because there is no dispute that the Will is valid – only that it is unfair to the Claimant.

The categories of people who can make a claim under the Act are:

  • Spouse/registered civil partner of the deceased

  • Former spouse/civil partner of the deceased, who has not remarried

  • Person who was living with the deceased before the deceased died

  • Child of the deceased (including an adult child) or a person who was treated by the deceased as his child

  • Anyone financially maintained by the deceased

Although this blog concerns Wills, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 may be made under the Act where there is no Will, that is the deceased died intestate

Finally

This may seem obvious, but a claim cannot be made disputing the Will until after the Testator has died. This is partly because there is always the possibility that the Testator will make a later Will in different terms, or revoke (cancel) the “dodgy” Will.

Please also remember Garden House Solicitors if you require advice or assistance on probate or any related subjects. Contact Hazel Jones, Solicitor, TEP SFE on 01992 422128 or hazel@ghsolicitors.co.uk


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