WHERE THERE'S A WILL THERE'S A WAR

Your last will may not be the last word if someone decides to challenge this.

Nothing is certain but death and taxes, so the proverb goes. And in death is the final chance to determine how your hard earned money is distributed. This is done by a will and in this most important of documents most of us reflect family ties, friendships and charities. Sadly, many do not make a will at all and then what is called the law of intestacy says where the money goes; and it does not necessarily all go to the surviving spouse or civil partner and in the worst case everything could go to the Crown to help pay off the National Debt!

A will is essential if you want to be certain what is to happen after you die. And a professionally drawn will is the best way to ensure that certainty.

The law gives those of us over the age of 18 and of sound mind the freedom in a will to dispose of our assets after death in any way we wish. But, as we have seen, few things are certain, disputes can still arise, and have a habit of bringing out the worst. At a time of grief. And the star witness has just died!

There are two types of dispute in the field of what is known as contentious probate. First is over the will itself. To be valid a will must comply with the Wills Act 1837 which sets out the formalities. These formalities are strict and it is not worth taking the chance to do it yourself or use anyone other than a solicitor specialising in this field.

It is often claimed that the testator (the person who made the will) was not of sound mind, that he or she lacked the legal capacity to understand what they were doing when the will was made. With Alzheimer’s Society estimates that by 2025 there will be over 1 million people suffering from dementia in the UK, this issue is only going to become more frequently raised.

Then there is what lawyers call undue influence. This is the subtle influence over the testator’s mind which coerces him or her into making a will against their true wishes.

Finally, we have cases of a will being forged or there being some fraud such as destroying a later will so that an earlier will is used instead.

The second type of dispute is over the inheritance. These disputes have as their basis the Inheritance (Provision for Family and Dependants) Act 1975. This gives a Judge the power to, in effect, re-write a will in order to give some (or more) of the testator’s money to certain people such as a spouse, partner or children (including those over the age of 18 years) who feel they should have been left more.  

Andrew Morley provides dispute resolution and contentious probate services from our Lincoln office.