The death of a loved one is a traumatic event, but to find out you have been excluded from an inheritance you thought you were going to receive or had been promised can compound that distress.
You may be considering a challenge to the deceased’s will and making a claim on their estate.
If you are in this position it is vital that you seek our advice as soon as possible, as there are certain time limits within which you have to bring a claim.
Early action can also avoid an executor of an estate distributing the assets of the estate before you make your claim.
In many cases we will act on a NO WIN NO FEE basis and ALL initial consultations are FREE OF CHARGE.
Can I make a claim?
There are five main grounds upon which you can challenge the terms of the deceased’s will and seek to prove that the will was not valid.
- The will was not properly executed.
- The deceased did not have mental capacity at the time the will was drawn up and signed.
- Someone placed pressure on the deceased to make a will in certain terms and to their benefit.
- The deceased did not fully understand the terms of the will and lacked knowledge and approval.
- The will is a forgery or was created in fraudulent circumstances.
In addition to these five grounds you may also be able to bring a claim if you were financially dependent on the deceased and no financial provision was made for you.
There is also the possibility of bringing a claim, if the deceased had promised to leave you assets on their death in return for services you had provided during their lifetime.
In order for a will to be valid it must comply with the terms of the Wills Act 1837.
Section 9 of the Act sets out the requirements for making and witnessing a will as follows, and these requirements remain in force:
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 attests and signs the will or 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.
In light of the Covid 19 pandemic new law was introduced to vary the rules, in order to allow for wills to be witnessed by video link. These rules apply to wills made since 31 January 2020. This law will remain in place until 31 January 2022, unless further changes are made.
Whilst this change to the law has helped wills to be executed under safe socially distanced conditions the rules on the presence of witness still need to be followed. If you consider that the rules may not have been followed, then the will could be invalid. www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing
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Whether you or your business is involved in a dispute the first thing you will think about is whether or not your claim or defence has any merit.
The person making the will must have what in legal terms is called testamentary capacity. Did the person making the will have the mental ability to make or alter a valid will?
The legal test for establishing mental capacity was set out in the 1870 case of Banks v Goodfellow. The case decided that for the will to be valid the person making the will must:
- Understand the nature of making a will and its effects.
- Understand the extent of the property of which they are disposing.
- Be able to comprehend and appreciate the claims to which they ought to give effect.
- Have no disorder of the mind that perverts their sense of right, or prevents the exercise of their natural faculties in disposing of their property by will.
The population of the country is getting older and there an increasing number of people who are suffering from dementia and other mental health problems, so it is important to establish that the will maker had mental capacity when the will was made.
In many cases if there was a concern about the will maker’s mental capacity, then the solicitor or will writer who prepared the will should have obtained a medical report to confirm capacity. If they did not, and it transpires that the will maker did not have capacity, then there may be a claim for professional negligence.
It is important to note that the will maker’s mental capacity is judged at the time the will was executed. Many people experience ups and downs with mental health and understanding, but if they had sufficient understanding to appreciate the terms and effect of their will at the time of execution it will be valid.
If you consider that mental capacity was doubtful, then medical evidence and evidence from those with a close association will need to be obtained to proceed with any claim.
Undue influence occurs when a third party forces or coerces a person to making or changing a will to that person’s benefit. Coercion can be by physical threats, intimidation and bullying.
Many older vulnerable people may be susceptible to a form of coercion and leave gifts which they would not otherwise have left in their wills. The mere fact that a person in a position of power over the will maker has received a gift in the will is not in itself proof of undue influence. It is often very difficult to establish a case of undue influence and you need to prove that the will maker’s free will was completely oppressed.
In the 2007 case of Edwards v Edwards , the deceased mother had originally left her estate to be divided equally between her three sons. The mother enjoyed a close relationship with two of her sons but shortly before her death she made a new will leaving her entire estate to the third son as a result of false information which had been provided by the third son. The court concluded that there had been a deliberate poisoning of the mother’s mind and concluded this amounted to undue influence.
The court set out the following criteria in proving undue influence:
- The facts are inconsistent with any other hypothesis;
- Undue influence means influence exercised by coercion (the Deceased’s own discretion and judgement is overborne) or fraud;
- Coercion is pressure that overpowers the testator’s own wishes without actually changing their mind;
- The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overpower the Will;
- The person making the Will has not acted as a free agent in making their dispositions.
Undue influence and coercion will often take place behind closed doors, as in the 2013 case of Schrader v Schrader where the very elderly mother died aged 98. She had made a previous will leaving her estate divided between her two sons. In 2006 she made another will which was far more favourable to one son, who was at the time the mother’s principal carer and a forceful individual.
He arranged for a new will to be made and failed to explain why the family solicitor had not been instructed to prepare the new will. The court found that there had been undue influence and the will was invalid.
It’s worth noting that undue influence cases are difficult to prove and there will need to be very substantial evidence available to bring a successful claim.
Knowledge and Approval
A will is valid if at the time the person making it understood the terms of the will and approved the contents of the will. The will would normally be read by the person making it or be read to them. If the formalities regarding the signing of the will are followed, then there is a presumption that the person making the will had the necessary knowledge and approved the contents of the will.
If it later turns out that the content of the will was not as expected or intended, then it may be possible to bring a claim. In these cases there are usually some suspicious circumstances that give rise to such claims. Such examples might include:
- the will is very different from the terms of a previous will;
- the arrangement and instruction for the new will was given by a beneficiary under the new will rather than the deceased;
- the gifts under the will are very different to the wishes the deceased had previously expressed;
- the will was home-made and substantial benefit went to the party who prepared the will;
- the deceased received no legal advice from their own legal adviser;
- the deceased was elderly and the estate passed to strangers;
- the circumstances of the execution of the will are suspicious;
- the making of a new will is withheld from family and other close contacts of the deceased.
- The terms of the will were very detailed and there is no evidence the deceased read, understood or approved the will.
Each case will turn on its own facts. Though in situations where the will was prepared by a solicitor, it will be very difficult to bring a successful challenge on the ground that the individual did not know or approve it’s contents.
There are certain cases where evidence may be required to show that the deceased person had the necessary knowledge and approval. These cases include the following:
- Where the person making the will was deaf and/or unable to speak
- Where the person making the will could not speak and write or was paralysed
- Where the will was signed by someone else under the direction of the will maker
- Where the person making the will was illiterate or blind
Fraud or Forgery
If the signature on the will or those of the witness are not genuine then the will be classed a forgery and it will be invalid. The deceased’s estate will then be divided in accordance with a previous will or if no previous will exists, then in accordance with the Intestacy Rules. It may be necessary to obtain handwriting evidence to prove the forgery.
Reasonable Financial Provision
If the deceased left you out of the will, or if you did not receive as much as you were expecting, then you might be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Under the 1975 Act a claim might be possible if you come within one of the following categories:
- the spouse or civil partner of the deceased;
- former spouse/civil partner of the deceased and you have not remarried or entered into another civil partnership;
- living with the deceased for at least two years prior to their death;
- one of the deceased’s children (including legally adopted);
- treated as a child of the deceased; or
- were financially dependant or were being maintained by the deceased.
You will need to show that you were financially dependant on the deceased in order to make a successful claim and that you had a reasonable expectation of being financially supported by the deceased. If you were not dependent on the deceased at the time of death, then it would be very difficult to bring a successful claim.
The court will take account of your current and future needs and also those of other dependants when considering making any award. It will also take account of the value of the estate and try and balance the respective claims of dependants and beneficiaries.
In certain circumstances it might be possible to bring a claim based on what is called proprietary estoppel.
Such cases usually occur when a person wishes to enforce a promise, which was made between them and the deceased.
In certain cases the deceased may have promised that property would pass to the third party on the deceased’s death. If relying on such a promise the third party carried out a lot of work on the property, or carried out a great deal of work without a salary, then they may have a claim.
The rules on bringing a proprietary estoppel claim are well recognised and you need to establish each of the following points:
- a representation or promise was made to you;
- you relied on the representation or promise;
- you suffered a detriment as a result of your reliance.
If you cannot satisfy all three points your claim is likely to fail.
Talk to us to see if you have a claim
We recognise that the legal procedures around Inheritance Disputes claims can be complex and off-putting. Which is why we invite you to contact us to check if the circumstances of your dispute could result in a successful claim being made.
Our initial assessment of your case will be free of charge and we will let you know the likelihood of a successful outcome there and then.
What our customers say
I contacted David Mackenzie in connection with an inheritance dispute. He dealt with my claim on a no win no fee basis and from the outset his advice and guidance was excellent. I was kept well informed throughout and he achieved an excellent settlement for me when otherwise I could have ended up with nothing but for his help. It was a difficult case and the outcome could not have been better. I was very pleased with everything and I would highly recommend David and his team to anybody who is involved in a legal dispute.