1. You must be clear you have a right to claim; for instance there is no right to contest the validity of the Will if you have no interest in the estate once the Will you dispute is declared invalid. Further in a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you must fall within the category of potential claimants set out in section 1, so that […]
1. You can roughly divide will contest claims into two distinct types. 2. The first type of claim is one where you dispute the validity of the will because for instance, the person making it was coerced, didn’t have mental capacity or it was not properly signed and witnessed (or even because it was forged!). 3. The second type is where you are a close relative, spouse or dependant and […]
The death of a family member is in itself a sad event with a huge amount of emotional turmoil as one goes through the grieving process. At the time, considering the legal implications and understanding the ramifications of the last will and testament is often the last thought on your mind. If and when the will is contested there are even bigger headaches to come and turning to professional legal […]
In an ideal world this would happen: 1. Client instructs us to claim against a Will or estate 2. We accept those instructions and proceed to prepare the claim 3. We obtain all the evidence we need including a favourable report from a “friendly” expert 4. We issue Court proceedings and that case runs to a trial 5. We win at trial and recover all of our costs and everyone […]
In two recent decisions, where it seems there may have been an argument the deceased was unduly influenced but with insufficient evidence to run that or more importantly a claim that he or she lacked legal testamentary capacity, the courts seem to have been keen to impute instead the deceased did not know and approve the Will contents. The cases in question are Topciapski (2013) Ch 20 March 2013 and […]
Yes it can. In law (equitable law that is) there is a rule that a parent would not intend to benefit his or her child twice, by making a substantial gift to the child and following the death of the parent, by leaving the same or an equivalent amount by Will. The Court presumes the parent would not intend to benefit one child twice at the expense of any other […]
How to contest a Will 1. This blog is an update on our earlier blog following this topic. It should assist in describing what will typically happen in the Will contest claim. 2. There are two general types of Will contest claims. Firstly a claim that a Will is not valid because of problems with its execution (it was not properly signed by the person making the Will in front […]
What happens in short marriage cases where the surviving spouse is left inadequately provided for? Some recent analysis of this is provided by Mr Justice Briggs whose very clear Judgment in Lilleyman v Lilleyman is of considerable assistance. The surviving spouse (Mrs Lilleyman – the widow) received only 10% of her late husband’s estate. Unfair or eminently sensible? Taking Mr Justice Briggs Judgment at face value, I would say it […]
I described in a previous article the difficulties faced by adult children who bring a claim for financial provision from their deceased mother or father’s estate. Historically a court would be reluctant to make an award. It would judge that adult children who were capable of earning their own living were unlikely to be sufficiently deserving to warrant further payment from their parent’s estate. Conversely, if they were not so capable […]
Dispute resolution – what does it actually mean? Most potential claimants consider it must mean (for them) a successful day in court. Lawyers of course are much more circumspect. They know that once a case has reached a Judge, to a degree the case is beyond their control or put it another way it is out of control! Successful dispute resolution in will dispute claims and/or Inheritance Act claims is a combination […]
This is our reply to a recent enquiry which might assist: Thanks for your interest in our service. Please see quote from Mr Justice Briggs in Key v Key below. In essence the “golden rule” is a touchstone for best practice. However, it does not mean than where it is not followed a Will is invalid. It may mean that it is suspect or more open to question that it […]
The general rule is that following a trial, costs will follow the event. In other words the loser pays (his own costs and the winning party’s) This is varied in probate claims or will disputes, as the Court has an inquisitorial role in relation to Wills. In other words the court has an overriding duty to determine the validity of a Will. The effect of this means that to a […]
The Wills Act 1837 s9 governs its execution. A will cannot be held valid unless it complies with the archaic requirements set down thereunder, so that: No will shall be valid unless:- It is in writing and signed by the testator or by some other person in his presence and by his direction; and It appears that the testator intended by his signature to give effect to the will; and […]
As mentioned already, whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted as valid by the Court Probate Service and can only in fact be made once a Grant of Probate has been obtained. In effect, it is a claim against […]
This blog follows on from our brief guide dealing with disputes over the validity of a Will. It will probably be helpful if you read that before reading this! However in general whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted […]
In general your will dispute centres on either a claim against the validity of the Will or a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The latter is a claim against the estate, not a Will contest claim per se whereas a claim against the validity of a Will does involve in our view a true contest about the Will (as opposed to […]
A mediator is a professional dispute resolver. He charges a fee to try and help disputing parties to amicably settle the disagreement between them. How is this relevant to a Will dispute/Will contest/Will claim? Surely you are paying the Solicitor to bring court proceedings to do just that? The answer is this. It is incredibly expensive and risky to bring civil court proceedings in England and Wales given in general […]