Avoiding a claim against your estate

Everyone is free to sign a Will leaving their estate to whom they please. However, there are exceptions to this general principle, and so here we aim to highlight those situations so that action can be taken to ensure that, as far as possible, the Will takes effect as intended.

A Will can be challenged in any of the following ways:

Lack of testamentary capacity: this is a claim that the person who signed the Will did not have the mental capacity to sign it (that is, they did not know what they were doing). An example might be someone who has signed a Will whilst in the advanced stages of a dementia-type illness.

Lack of knowledge and approval: this is a claim that the person who signed the Will did not know of its content when they signed it. An example might be someone who has signed a Will without actually having seen it in advance.

Undue influence: this is a claim that the person who signed the Will did not want to sign the Will but felt that they had no choice. An example might be someone who has signed a Will in favour of a carer who threatened to withdraw care if the Will were not signed.

Fraudulent calumny: this is a claim that someone “poisoned” the mind of the person who signed the Will against someone else, who would otherwise have been a natural beneficiary of the estate, by casting dishonest aspersions on his character, and as a result the Will was changed. An example might be where one child of the person making the Will incorrectly asserts that another child had been convicted of a criminal offence – and as a result the Will was changed – knowing that this was false or not caring whether it were true or false.

Estoppel: this is a claim that the person who signed the Will (or indeed someone who has not made a Will) did not honour a promise to leave part or all of the estate to the disappointed beneficiary who relied on the promise to their detriment. An example might be a farm worker who worked for years on minimal pay based on the farmer’s repeated assertions that “one day this will all be yours!”.

Mutual Wills: this is a claim that the person who signed the Will failed to honour a promise not to amend a previous Will made at the same time as, and in similar terms to, someone else. An example might be where a couple have signed Wills leaving everything, on the death of the last of them, to their respective children, but following the death of the first spouse/partner, the survivor changes their Will to the exclusion of the deceased spouse/partner’s children.

Inheritance (Provision for Family and Dependants) Act 1975: this is a claim that the person who signed the Will did not make adequate financial provision for the category of person set out in this Act of Parliament. Examples might be where a spouse/partner has not been left sufficient assets, or where a child of the deceased has been excluded from the Will.

If you require any help or advice regarding the issues outlined above, please contact the team by phone or email to arrange an appointment.