Will disputes – taking action before the testator has died

If you suspect that someone has made a will in suspicious circumstances, is there anything you can do before that person dies?

The papers have recently reported a number of situations where high profile individuals: Bill Gates, Nigella Lawson and the like – have declared their intention to leave the majority of their fortunes to charity rather than their children. In these cases it seems unlikely that there is anything untoward going on – but what happens if you suspect that a relative is being put under pressure to draw up a will that does not reflect his or her true intentions?

A recap on the grounds for challenging the validity of a will

It’s worth remembering that there are specific grounds to challenge the validity of a will. These are:

• The will must be correctly signed and witnessed;
• The person making the will (the testator) must have the mental capacity to do so, and understand the extent of their estate and who they are leaving it to;
• He or she should know and approve the contents of the will; and finally
• There is no undue influence being placed on the person making the will

It is quite difficult to challenge the validity of a will on any of these grounds, usually because by the time the contents of the will have been made public, the testator is dead and cannot speak about his or her state of mind and what was going on at the time the will was drawn up and executed (signed and witnessed).

Action before death

The basic rule is that even if you suspect that someone has drawn up a will that is somehow invalid for one of these reasons, you cannot bring a challenge until the person has died. If you have suspicions about a will, it is important to enter a Caveat at the Probate Registry, which will mean that probate (and therefore the distribution of the estate according to the will you wish to challenge) cannot go ahead without an investigation into the circumstances. However, this cannot be done until the testator has died.

In some states in the USA, there are provisions which allow the provisions of a will to be challenged before the testator has died. Once a will has been drawn up, the beneficiaries, and family members who have been left out, are advised of the contents of the will and then have a specific period to challenge the will. If no challenge is brought in this specific time period, those individuals cannot challenge the will at a later date.

Steps to take

If you are aware of circumstances that could invalidate the will, you can take steps to improve your case by collecting as much evidence as possible while the testator is still alive. Evidence about his or her mental state, for example. Where you feel undue influence is being exerted over the testator, it may be worth talking to professionals involved in his or her care and raising your concerns that way; gather as much evidence as you can – bearing in mind that this may be difficult. You could even talk to a specialist lawyer who deals with will disputes to see what they recommend in the particular circumstances you are experiencing.

If you are concerned about the welfare of a close friend or relative and how that may have an impact on arrangements for their estate, you may need to act quickly following their death, either to prevent a grant of probate or letters of administration, or to bring a claim that you have not been adequately provided for in the will or under the intestacy rules. Taking early advice will put you in the best possible position.