last-will-and-testament-2020
Where do I stand if I have been cut out of a Will?
  • 20th Mar 2020
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The general rule is that people have the freedom to decide who they leave their assets to, so long as the correct procedures are followed and the Will is valid. However, if you have doubts as to the validity of the Will or you are a possible applicant under the Inheritance (Provision for Family & Dependants) Act 1975 you may be able to challenge the amount of your inheritance, or lack of.

 

Inheritance claims are complex and legal advice should be obtained early. Here are some of the most common types of claims our contentious probate team deal with:

 

Lack of due execution

 

A Will must meet certain requirements to be valid in accordance with Section 9 of the Wills Act 1837. If the Will fails to meet one or more of the requirements it will not be valid. These requirements are:

 

The Will must be in writing;

Signed by the testator or by someone who has authority to do so on behalf of the testator.

The testators must sign or acknowledge their signature in the presence of at least two witnesses.

Each witness must sign the will or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other).

 

The legal presumption is that a Will has been validly executed unless there is sufficient evidence to the contrary.

 

Lack of testamentary capacity

 

To make a valid Will the testator must have the requisite mental capacity. The requirements for this are found in the case of Banks v Goodfellow [1870] in which the Court held that for a Will to be valid the testator must:

 

Understand that they are making a Will and the effect of that Will;

Understand the nature and extent of the property of which they are disposing;

Understand the consequences of including and excluding certain people under their Will and appreciate the possible claims this could result in; and

Not be suffering from any ‘disorder of the mind’ that shall ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’

 

To challenge the testators capacity it would be essential to obtain medical evidence to help determine whether the above grounds could be satisfied.

 

Lack of knowledge and approval

 

The testator must know and approve the contents of the Will. There will be a presumption of knowledge and approval if the testator had the requisite capacity and due execution took place but this presumption can be rebutted if suspicions are raised surrounding the preparation of the Will.

 

Undue influence

 

The testator must not be subjected to undue influence or coerced into making the Will. This factor is one of the hardest to prove as most undue influence or coercion would typically take place behind closed doors by people in a position of trust. Therefore, the evidence to prove this must be of a specifically high standard, to which there is no explanation for the terms of the Will.

 

Inheritance Act Claims

 

Although this does not directly challenge the validity of the testator’s Will, a disinherited beneficiary may have a claim under the Inheritance Act 1975 for reasonable financial provision.

 

With the exception of a spouse or civil partner, those entitled to claim

would need to show that reasonable financial provision is necessary for their maintenance. A spouse or civil partner would be entitled to claim such financial provision that is reasonable in all the circumstances, whether or not required for their maintenance.