When somebody dies, it is a difficult time for friends and family alike, which can be made much worse if the person has not left a will, or the provisions of a will are contested. We generally assume when a will has been left that the executor of the estate will follow the wishes of the deceased as close to the letter as possible, though sometimes this is not entirely possible. There are several instances where a will can be contested, though not everybody can do so.
Who Can Contest a Will?
A will is considered an extremely important document, and the contents should be followed precisely, as the writer is generally assumed to have the entitlement to dispose of their assets as they see fit. There are occasions however, when a mistake may be felt to have occurred, an individual has been left out, or the contents may not be perfectly clear, or are ambiguous. Those who can make a challenge are generally restricted to immediate family members, such as current or former partner, children, grandchildren, or a person who had a close relationship or dependency with the deceased. Between the time of the will being written and the person’s death, circumstances may have changed, which need to be taken into account, especially if the death was sudden and unexpected. Taking the advice of contentious probate solicitors to check on your position, should be the first thing to do, if you feel a will should be contested.
Reasons for Contesting a Will
Courts are not overly keen to allow a challenge to a will and will only do so, when there are very legitimate reasons and there are limited circumstances under which such a challenge can be brought. A challenge can be made if the provisions of the will can be shown to be grossly unfair to one or more party, or leaves one or more dependant without any benefit. Courts are aware of the possibility of fraud and will thus consider the will itself and how it was drawn up. If it can be shown that undue influence was used, which may have tricked or deceived someone into making provisions which were the fraudulent or deceptive will of another person, the will may be overturned, especially if such a will deprives potential beneficiaries of their just entitlement. A will should be drawn up with great care, ensuring the instructions are very clear and unambiguous. A court may intervene if the instructions left do not meet this criteria.
Families today often have children from different relationships, and the courts have long recognised that children born out of wedlock, should have the same rights and status as those born legitimately. The will maker is within his rights to deliberately exclude certain persons, though must state precisely why they have done so, and in the case of children cannot do so, if they have a legal obligation to the child’s welfare.
Thus, when a person writes “my children”, he or she will automatically be referring to them all whether legitimate or not. If you feel you may have a claim, or that something in the will is not right, discussing it with a good probate solicitor is always the correct first step.