Losing a family member, friend or loved one can be extremely hard. But something that many of us are not prepared to deal with is a will that isn’t right. A will is a very personal document, but if you feel either that there has been some sort of mistake or the will was incorrectly amended later the deceased’s life, you may feel the need to challenge it.
It is extremely important to remember that a will can be a very tense subject with lots of family members feeling differently about the outcome. Ultimately, you should try to think about future relationships and prioritise speaking to family first. Only seeking legal action as a last resort. It is often possible to settle differences without legal proceedings.
Nevertheless, in some cases it can be virtually impossible to avoid this scenario so if you do wish to contest a will, here are some of the things that you need to know.
Reasons you can challenge a will
There are a number of reasons that people challenges wills. Firstly, under the Inheritance Act of 1975 it is possible to challenge a will that fails to make reasonable provision for spouse or children (as well as a small number of other exceptions). It is very unusual for the will to be completely disregarded, but if it is judged to be completely unfair there may be a concession made.
It may also be the case that the will is invalid. This could be the case if the proper procedure has not been followed when the will was written. That includes have the will signed in front of two independent witnesses. Of course, it is also true that if the person making the will was not in a rational mind in which case they may have made decisions that you do not think should stand.
Have you been ‘provided for’?
It is important to note that you can only dispute the will on the grounds of not being provided for in certain situations. As has already been mentioned if you are the spouse or child of the deceased you can make a legal claim, but there are situations as well. For example, if you are treated as a child or if you have lived in the same household for a least two years prior to the death.
In other cases there is no legal requirement for a person making a will to make reasonable provision, and it will be possible to take the legal matter further. However, as we shall see, it is not only very close relatives who can challenge a will.
Can I dispute the will?
Some people believe that it is only the close relatives or spouse of a person who can challenge their will, but this is not necessarily the case. While, as discussed, only certain people can claim that they have not been provided for, in other cases anyone can dispute it.
If you believe the person who made a will lacked the mental capacity to do so or would not have approved changes made by others, it is possible to challenge the will. It could be the case that you think someone was putting pressure on the person making the will or if the will was not created within the legal parameters – for example without witnesses.
Get legal advice as soon as possible
If you are considering contesting a will, the most important thing to understand is that you need to speak to a solicitor as soon as possible. Clearly the circumstances leading up to the creation of every will are different, and there is no one-size-fits-all answer if you think you might need to challenge it. An experienced solicitor will be able to talk you through the situation with you and help you understand whether you have a case.