Navigating the legal challenges associated with wills and estates can be complex and emotionally taxing.
Whether you are contesting the validity of a will, seeking financial provisions, resolving trust disputes, rectifying mistakes, or addressing executor or trustee disputes, we offer a no obligation initial call to discuss your matter and the various options open to you.
1. Challenging the Validity of a Will
2. 1975 Act Challenges for Financial Provisions
3. Executor Disputes
4. Trust Disputes
5. Mistakes in Wills
1. CHALLENGING THE VALIDITY OF A WILL
The law provides for several grounds under which the validity of a will can be challenged. These are as follows:
a. Lack of Due Execution
A will must meet specific requirements to be validly executed. Challenges in this area focus on whether the will was signed and witnessed in compliance with s9 of the Wills Act 1837 which states:
‘No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
Failure to adhere to these requirements may render the will invalid.
b. Want of Knowledge and Approval
This ground alleges that the testator did not know and approve the contents of their will.
Proving lack of knowledge and approval involves examining the circumstances surrounding the will's creation and its execution, as well as the testator's understanding of the document.
c. Testamentary Capacity
This challenge questions the testator's mental capacity at the time of making the will.
The test of establishing testamentary capacity is set out at common law in the Matter of Banks Goodfellow (1870) and involves demonstrating that the testator understood the nature of the act, recognise and consider the extent of their assets, comprehend and appreciate any claims to which he ought give effect.
If these requirements are not met, then the Will maybe invalid.
d. Fraudulent Calumny
Fraudulent calumny refers to situations where a person poisons the mind of the testator against another individual, leading to the exclusion of the latter from the will.
Proving fraudulent calumny requires demonstrating the false and malicious statements that influenced the testator's decisions.
e. Forgery
Forgery occurs when a person alters or fabricates a will and/or signature without the testator's knowledge or consent.
Uncovering a forged will involves conducting a thorough investigation and presenting evidence to prove its illegitimacy.
f. Undue influence
This challenge relates to an allegation that someone exerts pressure or manipulates the testator to make decisions that go against their true intentions and wishes.
This can often be a delicate and complex issue to prove, as it requires demonstrating that the testator's free will was compromised.
2. 1975 ACT CHALLENGES FOR FINANCIAL PROVISIONS
Under the Inheritance (Provision for Family and Dependents) Act 1975, specific individuals may bring claims seeking financial provision from the estate. These individuals include:
a. Spouse or Civil Partner
A spouse or civil partner who has not received reasonable financial provision may make a claim.
The court considers factors such as the claimant's financial needs and resources, as well as any obligations and responsibilities of the deceased towards them.
b. Unmarried Partner
An unmarried partner who lived with the deceased for at least two years before their death may also bring a claim for financial provision.
The court evaluates the nature and duration of the relationship, among other factors, when determining the appropriate award.
c. Child of the Deceased
Children (including adult children and/or legally adopted children) can bring a claim if they believe the will or intestacy rules fail to make reasonable financial provision for them.
The court examines factors such as the child's financial needs, resources, and conduct when assessing the claim.
d. Person Treated as a Child
In some cases, individuals treated as a child of the deceased, even if not biologically related, may be eligible to make a claim.
The court considers the nature and duration of the relationship and the deceased's responsibilities towards the child.
e. Person Financially Dependent on the Deceased
Individuals who were financially dependent on the deceased, but fall outside the categories mentioned above, can still seek financial provision.
The court evaluates the nature and extent of the dependency to determine the appropriate award.
3. EXECUTOR DISPUTES
Executor disputes can arise when conflicts emerge between the executor(s) and interested parties. The following actions can be taken:
a. Removal of Executor
Interested parties can apply to the court for the removal of an executor if there are valid reasons to believe they are unfit to administer the estate. Grounds for removal may include misconduct, failure to fulfil duties, conflicts of interest, or a lack of capacity.
b. Claims Against Executors
Interested parties who have suffered harm due to the executor's actions or negligence can bring claims seeking remedies such as compensation or a court order compelling the executor to fulfil their obligations.
4. TRUST DISPUTES
Trust disputes may arise when beneficiaries or other interested parties feel the trustees are not fulfilling their duties.
Beneficiaries can apply to the court to remove trustees if they believe they are acting improperly or breaching their fiduciary duties. Grounds for removal may include incompetence, conflicts of interest, dishonesty, or a failure to carry out the terms of the trust.
Beneficiaries who believe they have suffered harm due to the actions or inactions of trustees can bring claims against them. These claims may seek remedies such as damages or an order compelling the trustees to fulfil their obligations.
5. MISTAKES IN WILLS
Errors in wills can have significant consequences. The following options exist to rectify such mistakes:
a. Construction
If there is ambiguity or uncertainty in the language of a will, the court can interpret its meaning through a process called construction.
The goal is to give effect to the testator's intentions, considering the surrounding circumstances and the will as a whole.
b. Rectification
Rectification is available when a mistake, such as a typographical error or a clerical oversight, leads to the will not reflecting the testator's true intentions.
The court can rectify the error and amend the will accordingly.
c. Professional Negligence
If a solicitor or other professional involved in the preparation of a will fails to meet the required standard of care, resulting in financial losses or harm to beneficiaries, a claim for professional negligence may be pursued.