It can be devastating to be left out of a will. It’s not just the loss of an inheritance but also the thought that a loved one such as a parent actually decided to cut you off or leave you far less than you were expecting.
There are several reasons why this might happen. The increase in the number of second and even third marriages makes life more complicated these days. People making a will may have to weigh up the conflicting interests of their children against those of their second wife or husband. They may also have to consider the needs of their children from different relationships.
It’s also true that some parents feel less connected to their children than in the past. This could be because families are more mobile these days and children may move hundreds of miles away, making it difficult to maintain a strong parent-child bond. Even if children live nearby, busy lifestyles can mean they rarely find time to visit their parents.
The result is that more and more of us choose to spread our wealth when we make our wills, even at the risk of family disputes.
This has led to an increase in the number of people prepared to mount a legal challenge if they feel they’ve been treated unfairly.
One of the main reasons for contesting a will is that the correct legal formalities were not observed. The person making the will – known as the testator – must sign it in the presence of two witnesses. The witnesses must also sign the will confirming that they observed the testator adding his signature.
The will can be signed on behalf of the testator if he is incapable of doing so himself but it must be in his presence and under his direction.
The other main reason to contest a will is concern over the testator’s state of mind. He must have testamentary capacity, which means he must know what he is doing and understand what the will is saying.
The will could be ruled invalid if it can be shown that the person lacked this capacity – usually through illness. This has become more of an issue as people live longer and develop age related illnesses such as dementia.
This can leave them prey to unscrupulous family members or even carers who may persuade them to change their will in a way they would not do if they were in good health. There should be no undue influence from anyone trying to benefit from the will. If you can prove there was undue influence then the will would be ruled invalid.
A will can also be contested if you believe it has been forged, although that can be difficult to prove.
If you wish to mount a challenge then you should contact a solicitor who can enter what’s known as a caveat at the Probate Registry to prevent the will taking effect while your case is considered.
Please contact Dominic Mackenzie if you would like more information about the issues raised in this article.
