Challenging The Validity Of A Will
Anyone that feels as though they have been treated unfairly or anyone who has experienced a family dispute relating to a will; will be pleased to know that there are opportunities to challenge the validity of the will. Wanting more money or feeling aggrieved that you haven’t received a particular item or asset isn’t enough to challenge a will but there are a number of reasons why contesting a will is a valid option.
Some of the reasons that people will claim a will is invalid are:
- A beneficiary shouldn’t receive anything
- Someone who was married or dependent on the person that passed has not received what a sum that they feel is adequate to provide for them
- Debts and/or assets have been incorrectly dealt with
- Concerns over the actions of the executors in distributing or administrating the debt
When contesting a will, the first step is usually for the person contesting (or more commonly their legal representatives) entering negotiations with the executors or other beneficiaries. It may be that an agreement can be reached between the relevant parties. If no agreement can be reached and there is still a belief that the will is invalid, it can be contested in court.
Wills are legal documents and need to fulfil legal requirements
There are legal requirements for a will to be valid, such as it needs to be signed by the person creating the will, referred to as the testator, and that this signature has to have been witnessed by a minimum of 2 people.
There is also the situation that a will is deemed as being invalid if the testator acts under undue influence or if they lacked “testamentary capacity” when they created the will. This basically means that the person who creates the will needs to understand what they are doing.
Ways in which a valid will can become an invalid will include:
- The testator making a subsequent will
- The testator marries or enters into a registered civil partnership
- The testator destroys the will deliberately to ensure it no longer applies
If a will can be proven to be invalid, the person will be considered as having died intestate, which means without a will.
People who can contest a will include:
- The spouse of the deceased
- Anyone that had lived with the deceased, as “husband and wife” for a minimum of two years
- A previous spouse who hasn’t remarried and who never received a “clean break” settlement in the separation
- A child or someone who has been treated as a child
- Any other financial dependent
The will can be contested by people who feel that they were left out of the will or who feel that they didn’t receive a fair share of the estate. The person challenging the will has to prove why the will is unfair or invalid.
A common for people to challenge wills is to challenge the way that the estate has been administered and distributed by the executors. There are reasons why an executor may need time to resolve the matters of the estate or why the assets available are not as large as what was initially expected (funeral costs and inheritance tax can impact on the available sums as these take priority) and it may be that there are reasons to maintain an asset, with an expected rise in value being a commonly cited reason.
This means that just because someone doesn’t like how an executor is behaving or they haven’t received money in a short period of time they can claim the executor has acted incorrectly. However, if there is a belief that an executor has acted improperly, it is best to seek legal advice and determine what to do next.