It is a sad and quite traumatic time when a loved one dies and unfortunately it can be all too common that arguments over the deceased`s Will can ensue, which is never what the Testator would have wanted.
In order to successfully challenge a Will then there must be proper grounds for doing so. The grounds for challenging a Will are as follows :
- The Will wasn`t validly executed in accordance with the Wills Act;
- The Testator had a lack of testamentary capacity at the time the Will was executed;
- The Testator was under undue influence;
- The Will is fraudulent or forged;
- The Testator had a lack of knowledge or didn`t approve the Will;
- If unclear, what did the Will mean ? ( rectification / construction claims ).
You cannot challenge the validity of a Will simply because you have been left out of it and you don`t like the Testator`s decision to leave you out of the Will. (Although claims can be made under the Inheritance (Provision for Family Dependents) Act 1975 whereby you could make a claim for financial provision from the estate but only if you meet the very strict criteria for making such a claim).
It is a common misconception that the estate will simply bear the costs of any claim for whatever reason. As with all litigation, the general rule that the losing party will be liable to pay the successful party`s costs applies. There are however two exceptions to this general costs rule, whereby the estate would pay the costs of the dispute, which are as follows:
- The testator has contributed or been the cause of the litigation;
- Where there is need for a reasonable investigation into the Will;
All potential Claimant`s should therefore consider thoroughly the merits of their case before proceedings are commenced. Parties should be aware that unreasonable conduct and vexatious claims could, and likely will, result in that party bearing the entire legal costs for the dispute!
If you would like to discuss whether you, or a loved one or friend, may be able to challenge a Will then please contact us to discuss the merits of a potential claim.