Last wishes - No Will

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A person dies intestate, if they do not leave a valid Will.  When this happens those closest to the deceased such as their partner in life or even their children could receive less than the deceased intended.  This could result in their assets or money being distributed where not intended, and it could also mean more Inheritance Tax than necessary which will reduce the deceased's estate.

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We assist executors and beneficiaries in various disputes including:-

 

• allegations of Undue Influence;

• disputes about jointly owned properties

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Disputes about Wills

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Leaving a Will which sets out clearly the deceased wishes can avoid many issues, however, arguments can and do still arise.  Losing a loved one is devastating and so very distressing when our emotions are at their most vulnerable during this time.  Family relationships are under considerable strain when everyone is coming to terms with loss and grieving for the deceased. 

 

Disputes can occur between beneficiaries (those entitled to receive a legacy) and executors (those who administer the estate after death). 

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A Will could be challenged in Court in the following circumstances:

• The Will was made under duress (i.e. under pressure from a third party)

• The deceased did not have mental capacity at the time of making the Will

• There is a technical defect with the Will, such as it not being executed properly

• Negligently drafted Will

• The Will was found damaged or torn

• Promises of legacies made by the deceased outside the scope of the Will

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Invalidity:

The Wills Act 1837 lays out strict requirements as to the validity of a Will.

 

A Will must be in writing and signed by the deceased (or their instruction) in the presence of two witnesses who should also sign. A witness may not be a beneficiary. The best practice is that there should be a solicitor’s attendance note setting out exactly how execution of the Will took place.

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Capacity :

A testator must have a basic level of capacity. The test is not high and the testator must be capable of understanding the nature of making a Will and the effect of the proposed disposition, the extent of the assets which they possess and to gift,  and the “claims” which might justly be made against their estate (for example by dependants).

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This is a common cause of claims. It is sometimes sensible where the testator is elderly or infirm to get a medical report confirming their capacity at the time that the Will is executed.

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Undue influence:

The testator may sometimes be put under inappropriate pressure to make gifts in their Will. This is extremely hard to prove.  The Courts are alert to “odd” provisions – particularly where the principal beneficiary of such a Will has drafted it, or been instrumental in its preparation.

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The law concerning disputed Wills/estates is complex. Rapid action can be necessary, for example to comply with the time limits in the Inheritance Act or applications to register caveats at the Probate Registry (preventing the issue of a Grant of Probate).

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Grant of Probate disputes

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Once a person dies and there is a Will it is necessary to locate it so that a Grant of Probate can be obtained and the estate duly distributed in accordance with the terms of the Will. These steps can be problematic and complicated for the executor in the following circumstances:

• The original Will is lost or destroyed

• The Will is in the possession of someone who refuses to release it

• Where a Caveat has been entered

• Where assets are held abroad

• Threat of legal action against those seeking to obtain a Grant of Probate

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Equally, beneficiaries or persons with an interest in an estate may wish to ‘freeze’ the granting of probate so that a particular dispute or issue can be investigated.

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A person can appoint up to four people in a Will to act as executor. Although executors should remain neutral, there is potential for disputes to arise between themselves and the beneficiaries during the administration of an estate.