The (almost) A-Z of a will dispute
Will dispute? Confused by legal jargon? Our blog should help make things clearer!
The law that applies in the case of a will dispute is full of technical language, much of it deriving from years gone by, and often difficult to understand, even by lawyers who specialise in other areas of the law. Our (almost) A-Z guide should help you get to grips with what’s going on – and if you’ve got any questions, get in touch!
Administrator (see also Letters of Administration)
If someone dies without leaving a will – ‘intestate’, their estate will be handled by Administrators – usually close relatives, who must apply for Letters of Administration to handle the estate and deal with its distribution
A ‘beneficial interest’ – or simply ‘an interest’ in the estate is required before someone can challenge a will. People who are named in a will, or who would inherit under the rules of intestacy have a beneficial interest in a will, but the courts will occasionally allow someone with a slightly more tenuous connection to challenge a will, if justice requires it.
If you have a concern about the validity of a will, you can enter a Caveat to stop the Grant of Probate and to prevent the estate being distributed while your claim is being considered.
Distribution is the division of the deceased’s estate amongst the beneficiaries, in accordance with the will, or according to the Intestacy Rules. If you are worried about the validity of a will and wish to contest a will, you should enter a Caveat to prevent the grant of Probate and distribution of the estate.
The ‘Estate’ is the possessions, property, assets of the deceased, and also his debts
Executor (See also Probate)
When someone dies leaving a will, the chances are the will has appointed Executors to handle the estate and to oversee its distribution in accordance with the will. There are professional executors who can carry out these tasks, as the role of executor can sometimes be complicated and time consuming.
There are a number of situations when a will can be challenged on the grounds that it is a fraud. Will fraud is increasingly common and can be hard to prove if the document is, apparently, signed, dated and witnessed. Will fraud can arise if a will is deliberately destroyed in order for an earlier will (or the rules of intestacy) to apply. Will fraud is also committed if the signature on the will is not actually that of the Testator, if the will was not in fact signed in the presence of the witnesses
The Golden Rule is a rule that applies to solicitors drawing up wills for their clients in circumstances where there is a risk that the mental capacity of the Testator at the time the will is made may be challenged. In these circumstances, the Golden Rule is that the solicitor MUST take steps to make sure the Testator has the mental capacity to make a will – if necessary by obtaining medical evidence from a specialist.
When someone dies without leaving a will, they die ‘intestate’ and a series of rules – the Intestacy Rules – apply to govern the distribution of the estate.
Knowledge and Approval
When a will is properly signed and witnessed, the courts will presume that the testator ‘had knowledge’ of what was contained in the will, and ‘approved’ the contents of the will. If the will is drawn up in circumstances which “excite the suspicion of the Court” – for example if it is drafted by someone who benefits under the will and the will is very complex, it may be possible to argue that the will was not executed with ‘knowledge and approval’.
Letters of Administration
When someone dies intestate – without a will – Letters of Administration must be applied for by someone willing to undertake the distribution of the deceased’s estate in accordance with the Intestacy Rules.
Mediation is a process through which many will disputes can be settled. Mediation uses the services of a professional mediator – a facilitator who will listen to both sides of the case, challenge, negotiate and ultimately aim to bring both sides to a resolution. It is a far less formal process than court proceedings and does not involve the parties having to face each other in the same room when emotions can run high.
A Testator must have mental capacity to make a will. He or she must know what he is doing, and what the implications of the will are. It is the Golden Rule of will making that where a Testator is old, seriously ill, or otherwise vulnerable, the solicitor drawing up the will must be satisfied that that testator has the necessary mental capacity. If necessary, the solicitor should involve a medical expert.
No Win No Fee
The basis on which we at Willclaim Solicitors can handle most will disputes. ‘No win no fee’ is exactly that – if the claim is unsuccessful, we will not be paid. If the claim is successful, we will recover our costs – usually from the other side, and if not, from the share of the estate that you receive as a result of the claim.
Personal Representatives are the people who have legal authority to represent and manage the affairs of the person who has died. In the case where there is a will, the personal representatives are known as ‘executors’. Where the individual died intestate, the personal representatives are known as ‘administrators’.
Probate is a process by which a will is determined to be valid. Once the process is complete, assuming there are no problems, a grant of Probate will be made to the Executors who can then administer the estate.
As with any legal action, it’s important to weigh up the likelihood of succeeding against the risks of bringing a case. One risk to consider before bringing proceedings is whether you will be in a better or worse position should you be successful. If you are challenging a will, and succeed, meaning that there is then no will, and the rules of Intestacy apply, where will that leave you?
A settlement is what is reached if the parties involved in the will dispute can agree the outcome without going to court. Mediation is often instrumental in achieving a settlement.
The Testator is the person who has made the will. He or she should be over 18, and must know and appreciate what they are doing
While it is difficult to prove, if there is evidence to show that the wishes and intentions of a testator were entirely overridden by someone else and the testator was effectively forced into making a will that did not reflect the testator’s wishes, but the wishes of that someone else, then a will may be successfully challenged on the basis of undue influence.
Valid Execution relates to the process by which the will is made. The will must be signed by the Testator in the presence of 2 witnesses who must then themselves sign the document.
Last but by no means least – the Will. It’s fundamental (of course) to all these claims – they are ‘will dispute’ claims after all, so there needs to be a will. A will is a legal document by which the Testator sets out who is to inherit his or her property and in what order. To be binding, the will must have been validly executed.
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