The number of disputes concerning entitlement to the estate of those who have passed away is unfortunately increasing. This may partly be due to the greater complexity of modern society with serial re-marriages, cohabitational relationships and so on. This combined with the greater distribution of wealth (and the complexity of our financial affairs) means that it has never been more important to seek specialist advice from a solicitor as to the preparation of Wills.
The testamentary provision of a deceased person may be challenged in a number of ways, including:-
The Inheritance Act 1975 may be used to challenge the distribution of an estate either whether the deceased left a Will or did not (died intestate). The general principle remains that we are free to leave our estate as we choose although the law does require us to make proper provision for surviving spouses, former spouses (and civil partners), children (including adult children), co-habitees (of at least two years standing) and anyone else who was “maintained” by the deceased.
In determining whether to grant an Inheritance Act application the Court has to consider the reasonable requirements of the Applicant. The test for existing spouses and civil partners is akin to their entitlement on a dissolution of the relationship – but in the case of other categories of claimants is the sum they require to be “maintained”. In considering this the Court must taken into account a specific checklist of criteria.
The Court may in its discretion award continuing maintenance, awards of capital sums or transfers of land (outright or on trust) for the benefit of a successful applicant.
Any Court application must be issued within six months of the Grant of Representation. It is extremely difficult for this time limit to be extended.
The Wills Act 1837 lays out strict requirements as to the validity of a Will. What follows here is just a brief summary – if you think that a Will has been invalidly executed, tailor-made specialist advice should be taken. However, a Will must be in writing and signed by the deceased (or on his instruction) in the presence of two witnesses who should also sign. A witness may not be a beneficiary. The best practice is that there should be a solicitor’s attendance note setting out exactly how execution of the Will took place.
A testator must have a basic level of capacity. The test is not high and the testator must be capable of understanding the nature of making a Will and the effect of the proposed disposition, the extent of the assets which they possess and are able to gift and the “claims” which might justly be made against their estate (for example by dependents).
This is a common cause of claim and with elderly or infirm testators it is sometimes sensible to procure a medical report confirming capacity at the time that the Will is executed.
The testator may sometimes be put under inappropriate pressure to make gifts in their Will. This is extremely hard to prove but the Courts are alert to “odd” provisions – particularly where the principal beneficiary of such a Will has drafted or been instrumental in its preparation.
The law concerning disputed Wills/estates is complex. Rapid action can be necessary, for example to comply with the time limits in the Inheritance Act or applications to register caveats at the Probate Registry (preventing the issue of a Grant of Probate).
Lawson Lewis Blakers have specialist departments dealing with Wills and with civil disputes. We are well equipped to help.
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