Challenging a Will
Everyone should have a Solicitor draw up a Will which speaks from death on his/her behalf for if death occurs without a valid Will (“an Intestacy”) the law directs as to distribution of assets which may very well not be in accordance with what the Deceased would have wanted. In certain cases Wills are challenged through the Courts and we act both in relation to defending such challenges and bringing the challenge forward. We are always mindful of family sensitivities and the potential for arguments between grieving relatives which is most unfortunate and therefore sensitivity will always be shown by us, however, we will also stand up resolutely for our client’s rights be it those the Claimant on the one hand or the Executor appointed to administer the Deceased’s Estate by Will on the other and indeed the Deceased’s own final wishes require to be respected unless there is a clear irregularity. The main areas under which a challenge to a Will can be mounted are as follows:-
SERVICES INCLUDED
- 1. Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979. This legislation gives certain categories of person the right to apply for an award out of the Deceased’s Estate if the Deceased failed to make reasonable financial provision for them.
- 2. If a Will is not properly executed it is invalid. There must for instance be two witnesses, present at the same time who witnessed the Testator’s signature on the Will and sign themselves. They must not be beneficiaries.
- 3. Undue influence – if someone perhaps vulnerable or elderly is making a Will and appears to be influenced or coerced by a beneficiary so that the content of the Will is not his/her true wishes and feelings then that may be a ground for challenge.
- 4. Medical Capacity – this is one of the most well travelled areas of challenge. Often people who make Wills are elderly and whoever is drafting the Will needs to be particularly careful to ensure the Testator has the mental capacity necessary to make a Will. The test is called having a sound disposing mind. There is a lot of law in this area, however, suffice to say the person advising the Will maker would be well advised to obtain medical notes and/or a specialist report if in doubt as to capacity at the time of making the Will for subsequent production of records in Court clearly showing a lack of capacity would render the Will null and void.
- 5. Subsequent marriage renders a Will null and void.
