It is important for everyone to have a Will. By making a Will you exercise choice over who administers your estate after your death (your Executor) and to whom your assets pass (your Beneficiary/ies). If you die without a Will, then your estate is administered according to the Laws of Intestacy which prescribe who is entitled to take out a Grant of Administration and who will be the beneficiaries. Even where there is a Will, there can still be disappointments which can cause disputes between family members. These disputes will often occur at times of distress. Legal action and negotiation can settle such disputes.
If you have been left out of a Will or an Intestacy, or have not been left as much as you need, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The people who might reasonably expect to have a share of the estate include a spouse or civil partner; children (including adults and step-children); a former spouse or civil partner who has not remarried; a partner who cohabited with the deceased for at least 2 years and anyone being financially maintained by the deceased in some way. Each case will turn on its own facts. It is important to note that any application to the Court must be made within six months of a Grant being issued. If you think that you could make a claim, you should contact us as soon as possible, as time is of the essence.
There are occasions when there seem to have been a mistake in a Will and in such cases it is possible to make an application to the Court for rectification of the Will. This is a discretionary remedy and would arise where the Will contains a clerical error or a failure to understand the deceased’s instructions. The Court will only exercise its discretion so as to give effect to the intentions of the deceased. In a recent Supreme Court case the husband accidentally signed his wife’s Will and the Court re-drafted the whole Will to reflect his true wishes.
When making a Will you need to be of sound mind, ie you must have mental capacity. You must have understood the nature of making a Will, the extent of the property that you are disposing of and be aware of the persons you would usually be expected to provide for. There is a general presumption that a person making a Will knows and approves of its contents. Suspicions are aroused however in situations where, for example, a deceased made a new Will shortly before death which is completely different from their previous Will. The deceased’s medical records may help to show lack of mental capacity.
In cases where undue influence is suspected, it is necessary to prove that the person making the Will was unduly influenced to the extent that their free will was suppressed. Claims alleging undue influence in the making of Wills are hard to prove particularly since the undue influence often occurs behind closed doors.
Finally, a claim may be made that the deceased did not approve the Will or know he was signing a Will and again these cases are difficult to prove and need witnesses to confirm what happened at the signing process.
If you feel you have been left out, not left enough or you or not happy with the way a deceased’s Will was made please contact us.