Wills, Probate and Trust Disputes
The period following someone’s death is likely to be difficult and stressful whatever the circumstances, but it can be even more so if there is a dispute about the validity or contents of a deceased’s will.
A will can be challenged in various ways. For instance, it is possible for family members or dependants to make a claim for reasonable financial provision from the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 even if at first glance it appears they do not have a right to do so.
In certain circumstances it is possible to challenge the validity of a will on the basis that the person making the will (the testator) lacked testamentary capacity. The test for this was set out in the case of Banks v Goodfellow, which states that the testator must have:
- understood that they were making a will and its effect;
- known the extent of the property of which they were disposing under the will; and
- was aware of the persons for whom they would normally be expected to provide and had no ‘disorder of the mind’ (such as Alzheimer’s disease or dementia) that would cause them not to benefit one or more of them.
Other grounds on which a will might be contested or challenged include:
- The will was not properly executed: a will must been in writing, and must be signed by the testator in the presence of two independent witnesses (i.e. who are not beneficiaries under the will, or married to a beneficiary of the will) who must also sign the will in the presence of the testator.
- Lack of knowledge or approval: Although a testator may have had testamentary capacity, they may not have known, and therefore could not approve, the contents of their will. This could be the case if they were blind, could not read or write, were deaf or dumb, or were paralysed and it is therefore important to prove that the testator knew and understood the content of their will.
- Fraud or forgery: this is usually very difficult to prove and can be very expensive too.
- Undue influence: A will is invalid where a testator was forced to make it or to make it in certain terms. This involves someone coercing or manipulating the testator in some way to influence the content of the will, however this can also be very difficult to prove.
Working closely with our Wills and Probate team, we also advise on:
- Negligently drafted wills
- Executors’ responsibilities
- Disputes between executors/ personal representatives/ trustees and beneficiaries
- Applications for the removal and/or substitution of executors or trustees
- Disputes arising from the creation or exercise of enduring or lasting powers of attorney
- Court of Protection claims over decision-making for someone without capacity
Please contact us to find out more.