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Challenging A Will

There are a number of reasons why Wills get challenged. This article aims to discuss some of those reasons and to find out how they are challenged.

From the public perspective

Anyone over the age of 18 and who has mental capacity in England and Wales can write a Will. For it be valid, it needs to be created and signed in accordance with S.9 of the Wills Act 1837.

There is a principle in England and Wales meaning that anyone has the right to give their property to whom they like. This is known as testamentary freedom. However the Inheritance (Provision for Family and Dependents) Act 1975 allows certain categories of people to apply for provision where a will fails to make adequate provision for them. This leads to challenges in the courts by disgruntled people who have been left out of the will.

The problems that this sometimes causes are evidenced by the recent case of Illot v Mitson, later appealed in the case of Illot v The Blue Cross and Others. Some individuals feel that they have a right to inherit even when excluded from, or not mentioned in a Will. As a result they challenge the Will meaning that the probate process is protracted and the estate can become embroiled in a legal battle.

From the professional perspective

A professional has an obligation to produce documents in accordance with the wishes of the testator (Will maker) and also has the responsibility to provide them with advice as to what they should consider when planning their estate for example, who might have a claim on the estate, what tax they might face, what they should do mitigate such tax as well as how to ensure their wishes are carried out.

They should also, as a matter of best practice, keep detailed notes of the meeting. This will protect you should the client’s capacity or the reasons for gifting ever be brought into question.

How Wills are challenged

If you want to challenge a Will because you don’t believe the Testator had capacity, feel that you are entitled to inherit, believe it is invalid due to undue influence or think the testator lacked the knowledge and approval of the contents of their Will then you should seek advice from a solicitor. You may also seek advice if you believe the testator revoked their Will or made a later Will.

A Solicitor will then issue a Larke v Nugus letter to the Will Writer in question requesting to see their client file to establish the facts of the case.

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