Occasionally there may be situations where a Will is challenged. Usually it is due to one of the following:
- It may be felt that the testator did not have the necessary capacity to make a Will at the time that the Will was made. This applies particularly to those testators who may be suffering from Alzheimers or other forms of dementia
- It may be felt that the testator had been pressurised into making the dispositions contained in the Will by another person
- The testator may have given instructions for the Will but the content of the Will is not what the testator requested (known as “want of knowledge and approval”). This includes inaccurate or incorrect drafting by the lawyer who drafted the Will on behalf of the testator
The wrong Will may be sent for probate due to a later Will being subsequently found (the presumption is always that the later Will replaces the older Will unless the later Will is defective)
- Someone who is not mentioned in the Will may feel that they should have received something under the Will. There is a statutory provision for this under the Inheritance (Provision for Family & Dependants) Act 1975 which lays down the circumstances under which someone should receive some benefit from the deceased’s estate. There is also case law stating when someone may be entitled to inherit.
- It may be suggested that a forged Will has been submitted to probate
- There may be something defective with the Will such as incorrect execution (signing) which was missed at the Registry, or where the claimant is claiming that the Will that went to probate was incorrectly executed, although on the face of it the Will appeared valid. This may be where one of the witnesses signed at a later date than the testator and the other witness, or where the witness was incapable.
At LCS we can offer advice on the courses of action available to executors who find themselves receiving a claim, or for beneficiaries who stand to lose out financially if their claim is not successful.