When a loved one dies, it is unfortunately the case that disputes can arise and can lead to a Will being challenged in court. The critical advice we give clients is that if you have any issue with a Will, contact us as soon as you can and we will move as quickly as we can to protect your interests. There are five main reasons why Wills are challenged and almost all of these grounds can be dealt with if you have good legal advice.
- Lack of testamentary capacity.
This means that the person making the Will was of unsound mind or did not understand what the Will said.
- Undue influence
If it is felt that somebody has put the person making the will under pressure or if they were bullied or coerced into making a will, then the provisions of the Will can be challenged.
- Failure to provide for the testator’s spouse or children.
Spouses in particular but also partners and children can challenge a Will if they feel proper provision has not been made.
- The will fails to acknowledge previous arrangements
The court may be prepared to enforce, in whole or in part, prior agreements and promises made by the Testator as to how they would leave their property. If for instance the Testator says that if a daughter, for example, continues to live with the Testator and look after him, then the house will be put into the daughter’s name and as a result, the daughter spends money looking after the house and carrying out repairs, then the court might be prepared to ensure that that agreement is enforced even if the Will leaves the house to someone else.
- Other noncompliance with law
A will is an important legal document and if it has not been signed or witnessed properly, it can be set aside.
If you believe there are grounds to challenge a Will, you need to move quickly. The law says that very little can happen to the Estate until the Grant has issued from the Probate Office. When the Grant issues, anybody who wishes to contest a Will has six months from the date of the Grant to bring legal proceedings. In our experience, however, serious problems can arise even if you allow only a fairly short period of time to pass. If you feel the Testator was put under undue pressure, there may be witnesses who can back up that claim. If you feel the Testator did not fully understand the contents of the Will, you may need to contact a doctor. All of this should happen as soon as possible because it is not unusual in cases like this for critical documents or witnesses to go missing or for people’s memories of events to become unreliable.