Contesting a will

Contesting a Will

The loss of a loved one can be an emotionally and financially devastating time, one of the most sensitive issues around this time can be the distribution up of the deceased’s assets. Individuals’ emotions can run high, especially, if they don’t believe that they have been appropriately looked after under the terms of the will.

Once the apportionments under the will have been made, unfortunately, it is not common for families to end up in unexpected disputes, which ultimately sometimes end up in Court.

There are two ways in which an individual can challenge a will. The first is if they don’t believe that the deceased was of sound mind or any other reason which may make the will invalid at the time of its creation.  The second way that a will can be challenged is if an individual claims that they are not appropriately looked after under the terms of the will.

If an individual is to claim that they are not being sufficiently looked after under the terms of a will, they will need to be within a restricted class of people for their claim to be successful. The following are included within the class of restricted people:

  • Current or previous spouse;
  • Any child or person treated as a child;
  • Any person that was being maintained by the deceased immediately prior to their death;
  • An individual who lived in the home of the deceased for 2 years prior to their death.

Unlike a challenge under the scope of not being sufficiently looked after under the terms of a will, it is open for any party to challenge the actual validity of a will. Reasons for challenging the validity of a will, generally centre around the mental capacity at the time of the individual who made the will and whether their knowledge and approval was given for the will to be made on their behalf. The most common reason for the challenge of a will is when the deceased was seriously ill at the time of making the will and the drugs they were under had a unnatural influence on their ability to make coherent decisions.

Further reasons as to why a will can be declared void include cases where undue influence was placed upon the deceased in an attempt to manipulate the terms contained in the will and also if the witnesses fail to execute a will properly. Any individual except for a creditor of the deceased can make a claim to challenge the will due to its validity.

There is no statutory time limit in place for the challenging of a will, under either grounds, however, if the Court believes that there has been an unreasonable delay, they may refuse to hear the case.

It is stressed however, that Court action should be considered as a last option and a much better way forward may be open communication and dialogue with other members of the deceased’s family.

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