I WANT TO CONTEST A WILL


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I WANT TO CONTEST A WILL


By making a Will you can decide what happens to your property and possessions after your death. This page establishes the steps to take if for any reason, you feel you need to contest the Will. If you need legal help and advice about making your will or related legal matter then

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WHEN CAN A WILL BE CONTESTED?
A Will can be contested if either the Will is either:

INVALID

or

if A PERSON HAS NOT BEEN ADEQUATELY PROVIDED FOR IN THE WILL.

INVALID WILL

INVALID WILL INTRODUCTION
For a Will to be legally binding, a number of requirements must be met. If they are not met, the Will is likely to be held invalid, which could result in the deceased’s assets being distributed not in accordance with his or her wishes.

CAPACITY
The testator must have been capable of making a valid Will at the time when the Will was made.
To be capable, the testator must ordinarily be aged 18 years or over, but there are some exceptions to this.
The testator must also be of sound mind, memory and understanding. Therefore a person must know and comprehend what they are doing when they make a Will.
If a person lacks the mental capacity to make a Will, they can make an application to the Court of Protection under the Mental Capacity Act 2005. However, this can be used retrospectively.

INTENTION
The testator must have clearly intended to dispose of his or her property, in the way set out in the Will, on his or her death. If the Will has been validly executed and the testator was of sound mind when the Will was made, such intention will be assumed.

UNDUE INFLUENCE, FORCE AND FRAUD
If a testator is pressured or forced into making the Will, the Court may set aside the Will entirely or in part. This also applies if a Will was obtained by fraud or forged after the person’s death.

FORMAT OF THE WILL
In the majority of cases, the Will must be in writing for it to be valid, although there are some exceptions to this rule. It must be signed by or on behalf of the testator, and the signature must be made and acknowledged in the presence of 2 witnesses at the same time.
There is no legal requirement that a Will should be dated, although it is advised that it should be.

SIGNATURE
The Will must be signed by the testator, or by another person in his or her presence and by his or her direction. Where a Will consists of several pages, the testator does not have to sign them all, providing all the pages are attached at the time the Will is executed.
As mentioned above, when the Will is signed, it must be in the presence of 2 or more witnesses present at the same time.

ATTESTATION
Once the testator has signed his Will, the witnesses should then either attest and sign the Will or acknowledge his signature, in the presence of the testator. Many solicitors use an attestation clause for this purpose.

INADEQUATE PROVISION MADE IN THE WILL

INADEQUATE PROVISION INTRODUCTION
Generally, the testator is entitled to leave his estate to whomever he chooses. However, if the Will fails to make ‘reasonable financial provision’ for certain classes of people, then under the Inheritance (Provision for Family and Dependants) Act 1975, the Court has the power to ensure that they are provided for.

WHO CAN MAKE AN APPLICATION UNDER THE ACT?
An application can be made by the following people if they have not been adequately provided for under the terms of the Will;
• A spouse or civil partner of the deceased
• A former spouse or civil partner of the deceased who has not remarried or entered into a new civil partnership
• A child of the deceased
• Any person (who is not a child of the deceased) who, if deceased was married, was treated by the deceased as a child of the family in relation to that marriage
• Any person who immediately before the death of the deceased was being maintained by the deceased
• Any person who lived in the same household as the deceased as the spouse of the deceased during the whole of the period of two years ending immediately before the date when the deceased died.

WHAT MATTERS WILL THE COURT TAKE INTO ACCOUNT WHEN CONSIDERING AN APPLICATION?
When the Court considers an application under the Inheritance (Provision for Family and Dependants) Act 1975, the Court will take the following into account;
• The financial resources and needs which the applicant has or is likely to have in the foreseeable future
• The financial resources and needs which any other applicant has or is likely to have in foreseeable future
• The financial resources and needs which any beneficiary of the estate of the deceased has or is likely to have in foreseeable future
• Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased
• The size and nature of the net estate of the deceased
• Any physical or mental disability of any applicant or beneficiary of the estate of the deceased
• Any other matter, including conduct, which in the circumstances, the Court may consider relevant.

FINANCIAL RESOURCES
When considering the financial resources of an applicant or beneficiary, the Court will take into account their earning capacity and when considering the financial needs of an applicant or beneficiary the Court will take into account their financial obligations and responsibilities.

CLAIMS BROUGHT BY SPOUSES
The Court will also take into account the following factors;
• The age of the applicant
• The duration of the marriage or civil partnership
• The contribution made by the applicant to the welfare of the family of the deceased including any contribution made by looking after the home or caring for the family
• What the applicant might reasonably have expected to receive if on the day the deceased died, instead of being terminated by death, had been terminated by divorce.

CLAIMS BROUGHT BY CHILDREN
The Court will also take into account the following factors;
• The manner in which the applicant was being or expect to be educated or trained
• In the case of children which are not the deceased’s children;
o Whether the deceased assumed any responsibility for their maintenance.
o The extent to which and the basis upon the deceased assumed responsibility.
o The length of time for which the deceased discharged that responsibility.
o Whether in assuming and discharging that responsibility, the deceased did so knowing that the applicant was not his child.
o The liability of any other person to maintain the applicant.

WHEN SHOULD AN APPLICATION BE MADE
The claim needs to be made within 6 months of the grant of probate being made.

HOW TO AVOID A CLAIM
If you decide to exclude any of the dependents listed above from your Will, it is important that you record the reason by either inserting a clause in the Will or placing a signed statement with the Will.