If feels that every other week a new family are hitting the headlines because they are fighting over a will. Blended families and second marriages are just two things that are causing a spike in the number of wills being contested. Another major one is the amount of money that is locked up in housing that is only then released when properties are sold on death.
The answer to whether you ‘should’ contest a will won’t be found in a financial text books, but what I can tell you is when you have grounds to contest. For a will to be valid it must meet the following criteria:
- It must be in writing and signed by the person making the will.
- It appears that the person intended to give effect to the will.
- The signature is witnessed by two or more people who are present at the time.
If you can prove that these criteria are not met, then it will be invalid and could bring into play previous valid rules or the rules of intestacy (i.e. the rules for those don’t have a will).
Another area that seems to be brought up is whether the person was of sound mind when they wrote it – i.e. did they lack capacity? The legal test for capacity is based on the 1870’s case of Banks v Goodfellow and says that the person must:
- Understand the nature and effect of the will.
- Understand the extent of the property that they are disposing.
- Understand and appreciate the claims to which they ought to give effect.
- Not suffer from a disorder/delusion which could bring about a disposal they would not otherwise have made.
One way to prove this is to obtain a medical report at the time of writing the will which suggests that capacity was lacking.
On top of these there is also the issue of “undue influence”.
So how do you prevent a will from being challenged?
Wills that are written by a professional usually stand up to scrutiny more than “DIY wills”. In addition a letter of wishes that sits with the will and explains why the will has been drafted can be a very important piece of evidence. Finally I think that being open with family members can prevent surprises.
Have you written a will? If not make an appointment this week. If you have written one, does it still represent your views?
Lots of Love,
Miss Lolly xx