It is an emotional time when someone dies and it is even more stressful should a dispute arise about a Will, whether you are Executor of the Estate or a potential claimant.
Inheritance claims against an estate when someone dies are actually quite common, but they are also not easy. Our dispute resolution experts can work with you to provide a solution if you find yourself either having to contest a Will or defend a challenge to a Will. In most cases a settlement meeting or formal mediation can produce an acceptable agreement but if there is no alternative to Court application, we will protect your position robustly.
It is our job is to do everything we can to ensure that our client’s wishes are recorded in the most robust and appropriate format to ensure that they are as closely adhered to as possible.
If there is a risk that there could be a challenge based on the capacity of the testator, it may be appropriate to obtain a capacity assessment from a medical professional. The purpose of requesting such an assessment is to provide the testator’s Executors with the evidence they may need to defend the wishes of the Testator against a challenge on the grounds of capacity.
Being a well-established firm in the area we can offer assistance to our clients when the need for a capacity assessment arises and can make appropriate recommendations.
Some common reasons that spark disputes over the validity of a Will, or how an estate is distributed include:
Everyone is presumed to have mental capacity until the contrary is proven. Mental capacity is a legal concept and often doctors will be called upon to provide evidence to the Court to set out their opinion on the Testator’s (the person who is making a Will) mental capacity at the time they made their last Will.
Over 150 years ago a landmark case, Banks v Goodfellow, was tested through the Courts that set a precedent still used today in defining the standard for mental capacity to make a valid Will. The Judge in that case provided a tiered test for mental capacity – the Testator must have;
The introduction of the Mental Capacity Act 2005 provides a general overview of mental capacity which can be applied to numerous scenarios, but it is only intended to enable the Court to make decisions for living, incapable persons, and not deceased testators.
In the recent case of Clitheroe v Bond [2020], the Court was asked to determine whether the correct basis to assess testamentary capacity was following the test set out in the Mental Capacity Act 2005, rather than the Banks v Goodfellow test. The High Court ruled that the Banks v Goodfellow test is ‘the correct and only test’ for testamentary capacity…has withstood the test of time…and has not been swept away by the Mental Capacity Act’.
If it is deemed that a person lacked testamentary capacity to make a Will, then the Will is deemed invalid, and the deceased’s Estate would either pass on the basis of an earlier Will (if there was one) or under the Intestacy Rules.
At THP Solicitors when we are taking instructions from our clients, we are mindful that Wills are being challenged more and more frequently, often on the basis that the testator may have had dementia.
It is important to note that a diagnosis of dementia, even if the testator made a Will after diagnosis, does not automatically mean that someone cannot make a valid Will. It all depends on whether the person meets, or met, the criteria for testamentary capacity above.
If a person who feels that “reasonable financial provision” was not made for them by a deceased person, they can make a claim against the estate.
The term “reasonable financial provision” is subjective to the individual and their relationship with the deceased and will be decided by the Courts. The Inheritance (Provision for Family and Dependents) Act 1975 provides guidance as to what factors the Court should consider and it is up to the claimant to show the Court that they have not been left a sum sufficient to meet their needs.
A person can also make a challenge if they think a Will may be invalid for lack of testamentary capacity or because it was procured by undue influence of a third party.
Usually, only immediate family, or those very close to the deceased. Any of the following can make a claim against your estate;
Yes, if someone dies without leaving a valid or effective Will then they have died ‘intestate’. In this scenario the law of rules of intestacy dictates who can inherit and an order of priority regarding their share of the deceased estate.
If there is a valid Will, then there is full ‘testamentary freedom’, meaning that anyone has the right to leave their assets as they wish and there is no legal obligation as to who someone includes as a beneficiary.
All claims in respect of “reasonable financial provision” must be made within 6 months of the issue of the Grant of Probate or Grant of Representation. Applications made after the 6 month deadline are likely to be rejected.
The Courts have allowed applications to be made out of time but only when it is in the ‘interests of justice’ to do so.
You want to be mindful when preparing your Will of any potential claims that could be made against your Estate following your death. At THP Solicitors, we will discuss your circumstances and your Estate and consider if there is any risk of a claim being made and advise accordingly. It maybe that there is little risk and no further action is needed or there may be a risk of a claim in which case we talk you through your options.
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