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 .
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 .
If you ’ re a Will Writer and are concerned having received a Larke v Nugus letter then you should approach the SWW for advice . Alternatively , click here take a look at our Larke v Nugus article .
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The Society of Will Writers