In recent years we have seen significant numbers of inheritance disputes – essentially a situation in which a Will is contested by those left behind. Increasingly fragmented family structures, high property prices and recession pressures are all potential factors in these disputes, as well as that age old fine line between love and hate. There are a number of grounds on which a Will can be challenged in a dispute situation and these are as follows:
1. Lack of Due Execution. Section 9 of the Wills Act 1837 requires a number of factors to be present for a Will to be validly executed. These are:
- That the Will is in writing and has been signed either by the testator or by someone else that they directed to sign it and who signed it in the testator’s presence.
- That it appears that the testator intended their signature to give the Will effect.
- That the signature was made or acknowledged by at least two present witnesses.
- That these witnesses either attest and sign the Will or acknowledge the testator’s signature in the testator’s presence.
Unless there is evidence to the contrary the legal presumption is that the Will has been validly executed.
2. Lack of Testamentary Capacity. The basic principles for judging whether a testator was of sound mind when the Will was made come from the case of Banks v Goodfellow. This requires an understanding of the effect of the Will and the fact that it is being made, of the nature and value of the estate and of the consequences of including or excluding certain beneficiaries. The testator must also not be suffering from a ‘disorder of the mind’, which may influence decisions.
3. Lack of Knowledge and Approval. The testator must know what is in the Will and approve of it – so they must know what they are signing is a Will and they must be aware of, and happy with, the contents. To use this ground to contest a Will it must be shown that the testator was not aware of the contents of the Will or that the circumstances of its creation were suspicious – for example there is a large gift for the party drafting it.
4. Undue Influence. Proving that the testator was put under duress, coerced or felt undue influence when making the Will requires proof of actual undue influence. When it comes to Wills the law does not presume that where one person in a position of trust has received assets from another there has been undue influence. Historically, strong evidence has been required to show that there is no other reasonable explanation for the terms of the Will – although recent case law indicates the courts might be more willing to accept undue influence arguments now than previously.
5. Fraud or Forgery. A Will that has been forged can be contested, as can a Will where a fraud has taken place. For example, where one potential beneficiary makes a fraudulent statement to the testator to get them to remove another beneficiary from the Will this may invalidate the Will on the grounds of fraud.
6. Rectification or construction. Construction is available as a ground for dispute where the wording in a Will is ambiguous and unclear. A Will may be rectified if it doesn’t follow the testator’s intentions, either because there has been an error in drafting or the instructions were misunderstood by the draftsperson.
7: Inheritance (Provision for Family and Dependants) Act claims. Under the Inheritance Act 1975, legal protection is available for spouses, children and other dependants where a person has died without leaving sufficient money for their continued well being. To bring a claim under the Inheritance Act, you must start your case in Court within six months of the Grant of Probate being obtained or you may lose your right to do so.
Stephensons has a broad range of experience assisting our clients with inheritance disputes on all the grounds above. Contact one of our team today for more information on 01616 966 229.