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Contesting a Will

Challenging the validity of a Will is a difficult and emotive topic and will inevitably come during a time of bereavement for those involved. It is also a topic around which there can be a great deal of confusion as to the circumstances in which a will may be challenged.

If you believe that a will does not accurately represent the wishes of the testator, or that the will has not been fairly or correctly executed by the Executor, you may have grounds for a challenging or contesting the validity of the will.

If you are considering making a challenge to a will or are involved with an estate, whether as executor or beneficiary, where such a claim has been threatened, our contentious probate team can help.

On what grounds can the validity of a Will be challenged?

Testamentary capacity – a will can be challenged if you believe that the individual making the Will (the testator) lacked the necessary mental capacity to do so.

Undue influence – If you are of the belief that the Testator suffered undue pressure or was influenced to change or update their will and in doing to go against their true wishes, you may have grounds to challenged the validity of the Will.

  • Undue influence – If you are of the belief that the Testator suffered undue pressure or was influenced to change or update their will and in doing to go against their true wishes, you may have grounds to challenged the validity of the Will.
  • Lack of knowledge and approval – the testator must know and approve the contents of his or her will.  There is usually a presumption of knowledge and approval but in certain circumstances proof will be required.
  • Lack of Due Execution – A Will that has not been created in accordance with the required formalities (of the Wills Act 1837) in relation to drafting, signing and witnessing will be invalid

Are there time limits on contesting a Will?

Although there are no strict or specific time limits for contesting the validity of a will, it can become more difficult to do so the longer the claim is left. Where the assets owned by the estate have already been distributed to beneficiaries, a claim made against a will is more challenging.

If you wish to make a claim for rectification of a will, it must be made before the expiry of six months from the date of the grant of probate.  A claim for rectification commenced later than this requires the permission of the court.

How our will dispute team can help:

Disputes between beneficiaries – Depending on the size and complexity of an estate, disputes and disagreements between the beneficiaries of a will can be surprisingly common.

Disputes between the executors and beneficiaries often arise where the beneficiaries believe that the administration of the estate is being mishandled. These scenarios can become increasingly complex for larger estates, where not only individuals but extended family members, businesses and properties are often also to be considered.

Common grounds for disputes between executors and beneficiaries include:

  • Failure or delays in the administration of the estate
  • Failure to administer the estate in accordance with the terms of the will
  • Actions leading to financial complications or loss to the estate
  • Disputes over the value of the estate and its assets

If you are involved in a dispute with either an executor or a beneficiary, our contentious probate team can help.

Applications to remove and/or replace personal representatives – Removing a personal representative, either an executor or an administrator, can be a relatively simple process if the individual is in agreement and wishes to renounce their duties. Providing that the individual has not “intermeddled” or interfered with the estate prior to the renunciation, a signed deed of renunciation is all that is required.

In alternative circumstances in which you may wish to remove or replace a person representative, the legal process is potentially more complex.

Professional negligence claims arising out of will drafting – If a will has been professionally drafted but contains errors or there have been problems in the process, there may be grounds for a professional negligence claim.

But who can bring a professional negligence claim?  It is established by case law that a duty of care is owed to the beneficiary of a will by the professional adviser drafting it.  Therefore it is the beneficiary who is detrimentally affected by the negligent will drafting who is entitled to bring the claim.

Grounds for a professional negligence claim arising out of the preparation of a will include:

  • Failure to draft a will within an acceptable timeframe (leading to a situation potentially where the testator has died before the will is signed)
  • Drafting errors or poorly drafted documentation such that the testator’s intentions are not carried out
  • Failure to give sufficient guidance on how the will should be executed
  • Omission of beneficiaries
  • Damage or loss of an original will in their charge

The grounds for removal will most often relate to either the capacity of the individual to carry out the role or to their conduct in relation to the administration. These include:

  • Conflict of interest – where the beneficiaries believe there is a legitimate conflict of interest between those of the personal representative and their ability to fairly manage the estate
  • Delay – where the personal representative is causing undue delays in the administration of the estate
  • Loss to the Estate – where the actions or inaction of the personal representative has caused, or has the potential to cause loss or damage to the estate

Rectification of a Will – An application for rectification involves asking the court to correct a will which does not give effect to the intentions of the testator.  The Administration of Justice Act 1982 provides for the court to make an order rectifying a will so that it carries out the testator’s intentions.  However, the failure to carry out those intentions must be due to a clerical error or a failure to understand the testator’s instructions.

Claims under the Inheritance Act 1975 – If you have been omitted from a Will, or are struggling financially, having not been left as much as you expected or due to the lack a Will altogether, you may be entitled to bring a claim under the Inheritance Act 1975.

The Inheritance (Provision for Family and Dependents) Act 1975 (‘the Inheritance Act’) allows legal protection to be given to specific individuals whose ongoing wellbeing is negatively impacted by a lack of ‘provision’ in a Will or the absence of a Will altogether.

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