Most people are aware of the importance of making a Will. If you die without a Will (intestate) then your estate will be administered according to the laws of intestacy. This may not coincide with your wishes. A properly drafted Will where instructions are taken by a professional will clearly set out your wishes and minimise the risk of any disputes after your death.
However even where a Will has been made there may still be some issues after death. This can be especially the case where professional advice has not been sought when making a Will.
Such issues include:
- Claims under the Inheritance (Provision for Family and Dependents) Act 1975.
Where someone has been excluded from benefitting under an estate, either because of a Will or where there is intestacy, then it may be open to them to make a claim pursuant to this act. Claims can only be brought if you fit into one of the prescribed categories being: spouse or civil partner; former spouse or civil partner; cohabitee (must have lived with the deceased a minimum of 2 years prior to death); child or someone treated as a child of the family; or someone financially dependent on the deceased.
There are strict deadlines imposed in making a claim and so legal advice should be sought as soon as possible.
The crucial question is whether or not, looked at objectively, the Will (or the intestacy) failed to make reasonable financial provision for the claimant in all the circumstances of the case according to the standard applicable to that claimant.
- Disputed Wills based on allegations of mental capacity.
The classic test to determine whether someone has capacity to make a Will was laid down in the case of Banks v Goodfellow in 1875. The person making the will needs to understand:
- The effect of his wishes being carried out at his death
- The extent of the property comprised in his estate
- The nature of any claims upon him
The ‘golden rule’ is to have a medical practitioner certify capacity although this is not always practical to obtain. If the Will seems rational on its face there is a presumption that the testator had capacity to make the Will. The burden of proof then shifts to the person attacking the Will.
- Will disputes based on allegations of undue influence.
The starting point is that there is no presumption of undue influence and this must be positively proved. This can be difficult to establish in practice. Evidence that a beneficiary persuaded the deceased is not sufficient. There must be strong evidence of coercion.
- Disputes involving Executors or Trustees.
If you are not happy with the way that the Executors and Trustees appointed under a Will are administering the estate then there are various courses of action open to you. You might think that the administration is taking too long or that costs are too high. The solution will depend on the nature of the issue and may involve complaints to the ombudsman or a court action as a last resort.
- Negligently drafted Wills and professional negligence claims.
If as a result of negligence on the part of a professional solicitor or Will writer a Will is not properly constituted, does not do as the testator wished or does not even exist due to delays in drafting then you may have a claim in negligence.
Whatever the situation call our professional and experienced private client team on 0161 832 4666
Alison is a solicitor in our Litigation department. Alison deals with a wide range of disputes, from small claims work through to multi-million pound Court of Appeal cases, and acts for our commercial clients as well as for the individual.
Alison Rocca - Solicitor
To discuss how Glaisyers can assist you contact Alison Rocca on [email protected] or via 0161 832 4666.