Contentious Probate | Know The Facts
  • Helen Claydon

Contentious Probate | Know The Facts

A well written Will is designed to convey the wishes of a deceased individual, however having a Will to follow may still not mean that the process of administering the estate is one that is simple. There are a number of reasons why a Will might be contested which has the effect of invalidating the Will and meaning that the administration must revert to the terms of an earlier valid Will or the rules of intestacy.

One reason that the courts will determined a Will is invalid is if the deceased did not have the mental capacity to have a clear understanding of their decisions at the time that the Will was signed. When someone makes a Will, they have to be of sound mind, memory and understanding. One of the main reasons for this, especially in elderly testators, is a diagnosis of dementia. Having a diagnosis does not automatically mean the testator did not have capacity but is often a common issue when it comes to deciding whether the individual had ability to make their own decisions at the time the Will was made.

Any lawyer who is providing advice on a Will should check that the individual is competent enough to understand the consequences of their actions while also being of sound mind. Should this not occur then a claim could be made for negligence against the professional providing the advice and guidance.

It is also possible for a Will to be overturned due to undue influence. Therefore, if the

deceased was pressured, coerced or forced into making their Will or the content of it, then it could lead to the Will becoming invalid.

What happens if someone thinks that they have not been given what they were entitled to?

If this is the case, then it could result in a claim under the Inheritance (Provision for Family and Dependents) Act 1975. This law makes it possible for close family members and dependents to apply to the courts for reasonable financial provision from the estate where there is an inadequate provision in the Will. In this instance, the Will remains in place but the court may order that a payment is made to a claimant from the estate to change the distribution.

Perhaps the deceased made a promise of property to an individual?

Should an individual rely on the promise made by the deceased of property, and acted to his detriment as a result, the courts have the ability to enforce the promise. This will mean that the property is then transferred from the estate to the individual, even if this is not included in the Will or the Will dictates the property should go elsewhere.

There have been many cases where individuals have been given part of an estate even though it was not contained in the Will. This proves that the courts will make a decision based on the information that they are given and the specific circumstances of the case. It is possible for an experienced will writer to give advice on any potential issues and to pre-empt them ensuring that your wishes are more likely to be followed if someone bring a claim against your estate.


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