Legal challenge

The only way to set your wishes for what happens after you've gone is to make a will. Without a will the rules of intestacy will apply.

A will can provide peace of mind on many levels. You can:

  • Ensure you look after your spouse and children;
  • Leave a gift to people or charities closest to you,
  • Ensure you split your estate fairly bearing in mind gifts you've made during your lifetime, or
  • Disinherit someone that might otherwise get a share of your estate.

Your will can be challenged by someone who feels that they have been left out or unfairly treated.  The courts will examine your will to ascertain whether everything was done property - and to ensure that nobody close to you loses out.

The three main areas of challenge are:

  1. The courts can step in because someone has been left out due to a change in your circumstances;
  2. The courts step in to protect you or your estate from harm; or
  3. The courts protect your family if you become too poorly or forgetful to be aware of what you are doing.

The first area relates to provision for anyone who is a dependant of yours.  If you made a will before e.g. having a child or cohabiting with a partner you may not provide for them in your will. Your child (or their guardian) can make a claim under the care for dependants acts.

The second area of challenge applies to protect your wishes in the event that someone tries to force or defraud you or protect your family.  This may be where someone pressures you or uses undue influence to make you create a new will. The courts can also protect your wishes if someone signs a false will and pretends it was you in an out-and-out fraud.

Finally the courts have processes to follow to check whether you knew what you were doing at the time you made your will.  The courts will ascertain whether you had mental capacity to make decisions about your estate and affairs.

When you make your will it is worth thinking whether any of the above could apply to you.  More importantly: you should also think whether someone may claim that one of these things applies to you - even though they may not.  An estranged family member could benefit if they could imply undue influence (e.g. from a new partner or friend) or if they could say that you no longer had mental capacity.

If you are in any doubt you should try to mitigate the chances of a claim like this being successful.  Please ensure you read all of our guidance and if you feel you have to protect your estate you should consult a traditional solicitor.  A will drafted like this will not be more "legal" - but a solicitor who takes instructions from you on a one-to-one basis can appear in court on your behalf if the validity of the will is ever challenged.

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