Challenges to historic Wills
Posted on 18th November 2020
There are reports that challenges to historic Wills have increased by up to 400% this year.
In some cases, challenges are being made several years after an estate has been settled.
People are enquiring about the possibility of challenging the Wills of friends and family members, believing they have a claim to money or assets, although they weren’t declared at the time.
Why are challenges increasing?
Increasing financial hardship due to the coronavirus pandemic could explain the sudden increase in challenges. People who are worried about their financial future could be looking for possibilities they wouldn’t have considered previously, even when only small sums are involved.
It’s also possible that, since the outbreak of the pandemic, many people have been working at home or furloughed. They might suddenly have time to tackle things that they previously put to one side, including the finding out whether they might have missed out on an inheritance.
Increasingly complex merged families could also explain some of the concerns being raised.
How can a Will be challenged?
The probate rules explain what happens when someone dies and what can be challenged, but historic challenges aren’t straightforward especially when assets and money have already been distributed.
The court will normally need to see proof that either material dishonesty or fraudulent behaviour influenced the original distribution of the estate.
Reassurance for the future
There has also been an increase in the number of people who want additional assurances that their financial interests will be protected if their inheritance won’t be received straight away. This might be the case, for example, if a spouse or partner continues to live in a property, which will only pass to the children after their death.
How to make sure your Will can’t be challenged
The most common problems with Wills arise when they don’t meet the minimum requirements to be:
• in writing
• signed by the testator, or signed on their behalf
• signed or their signature acknowledged in the presence of two witnesses
• signed or acknowledged by witnesses in the presence of the testator, but not necessarily in the presence of each other.
Increased use of DIY Wills which might not meet these requirements could also lead to more challenges.
When you make your Will, you must have the mental capacity to understand what you are doing and the implications. If, for example, you have recently had a diagnosis of dementia, then you should make sure that you consult your doctor or another professional who can confirm that you have capacity to make a valid Will.
Some people don’t realise that your Will is revoked when you get married or enter into a civil partnership. If you are planning to marry you will need to write a new Will or include your intention to get married in your Will.
If you intend to exclude someone from your Will who might reasonably expect you to make financial provision for them it is a good idea to say specifically why they have not been included.
If you are considering making a Will please get in touch for some advice.
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