Legal/Finance
Simon Mee, a specialist in solicitors Charles Lucas & Marshall's wills and estate planning team, looks at problems which can arise when there is a legal dispute over a will.
A will allows a person to show how they wish their assets to be distributed following their death. In general, any person over the age of 18 and of sound disposing mind may make a will.The first question to consider will be whether the will was correctly executed and therefore can be said to be valid.
Secondly, it will be necessary to consider whether a person was of sound disposing mind at the time the will was made.
Did they have the mental capacity to complete the will? Disputes over the issue of capacity to complete a will are becoming increasingly common and are likely to continue to rise in number for various reasons including the increase in the number of elderly people suffering from dementia and lengthening average life expectancy.
To have testamentary capacity a person must understand the nature of the act and effect of making a will. They must understand the extent of the property given by the will and have an appreciation of the persons they should consider in distributing their estate. They must also not be affected by any disorder or delusion which would prevent them understanding the terms of the will.
In addition to testamentary capacity, it is also necessary for the person to have known and approved of the contents of the will. This will in many cases be linked to the question of testamentary capacity, but should also be considered separately.
It is possible to challenge a will on the basis of undue influence. To be successful it would be necessary to prove actual coercion of the testator. This goes further than merely influencing the decision making by suggestion or otherwise and effectively requires sufficient influence to cause a loss of free will.
Each case will depend on its own facts and the starting point will be to investigate the circumstances in which the will was signed. A series of questions should be asked eg who prepared the will and who was present at the time, whether there are any previous wills and whether a medical practitioner provided a report of the person's capacity at the time the will was made?
Another common problem area is when a couple have not married but lived together for many years and one of the partners dies without making a will. If a person dies without a will they are said to be "intestate" and their assets will pass under the "intestacy rules". These distribute the estate among the deceased's relatives in a specific order. The surviving partner may be eligible to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Partners who have lived in the same household for two years as a husband wife or civil partner of the deceased may be entitled to make a claim for reasonable financial provision.
Reasonable financial provision is defined as “such provision as would be reasonable in all the circumstances for his maintenance”. The court will look at a variety of factors to assess this including the financial resources and needs of the parties and any obligations and responsibilities the deceased may have had. There is a time limit for making the claim.
For further information contact Simon Mee on (01635) 521212 or simon.mee@clmlaw.co.uk
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