Estate Law

Trusts

Trustees of Discretionary Trusts

Express Trust Formalities

Reform Presumed Resulting Trusts

Resulting Trusts

Discretionary Trusts Beneficiary Rights

Introduction to Secret Trusts

Secret Trusts

Enforcing a Trust

Certainty of Intention

Certainty of Objects

Certainty of Subject Matter

Special Duties of Trustees

Trusts

After Death

Challenging a Will

Making a Dependency Claim

Contesting a Will

Types of Grant and Who Can Apply

Inheritance Provision for Family and Dependants

Provision for Family and Dependants

Trustees Appointing Replacement

Perpetuities and Accumulations Rules

What Happens to Your Body When You Die

Introduction

Making a Will

Probate

When to Write a Will

Formalities of Making a Will - S.9 Wills Act

Executors

Rules of Intestacy

Inheritance Tax

Inheritance Tax on Gifts

Power of Attorney

Mental Capacity and Power of Attorney

Documents

A Living Will

Deed of Variation

Mutual Wills

Codicils and Revoking Wills

Dying Intestate

Revocation of a Will

On what grounds can a will be contested?

Contesting a will

Following a persons’ death when the distribution of the assets becomes a reality and the details of the will are made known to the beneficiaries there may become the instance when one or more of those beneficiaries may believe that the will is invalid and may wish to contest the will.

Which people can contest a will?

The following six kinds of people are able to contest a will:

1. The spouse

2. A former spouse who hasn’t remarried

3. Children

4. Step-children

5. A partner who lived with the deceased for more than two years

6. Any other dependants

What should an individual do if they are unhappy with a will?

If an individual is unhappy with the terms of a will then it is advisable to seek a caveat to stop the assets of the estate being distributed.

How long will this caveat last?

The caveat will last for six months. However, it is renewable and in certain cases can often lead to disputes being resolved before they reach the stage of court.

What happens if an agreement cannot be reached during the caveat stage?

If an agreement cannot be reached during the caveat stage then there will be two main grounds on which a will be can held to be invalid.

What are the two main grounds on which a will can be held to be invalid?

The two main grounds on which a will can be held to be invalid are as follows:

1. The validity of the will

2. Financial dependency on the deceased

The validity of the will

In order for a will to be valid it must satisfy certain conditions which are prescribed for by the law of probate.  If the will fails to satisfy these conditions it can be held to be invalid. There are certain time limits which apply in relation to some of these issues meaning that legal advice should be sought immediately when one of the issue arising.

What conditions must a will satisfy in order to be valid?

If a will does not satisfy one of the following conditions one of the above mentioned six people will be able to take action contesting the will:

• The will must be made by a person over the age of 18

• The will must be made willingly without undue influence from another person

• The testator must be of sound mind and fully aware of the meaning of the document

• The will must be signed by the testator in the presence of two witnesses who must also sign the document

• The witness should not also be a beneficiary or they will lose their own inheritance

Who will the onus of proof be on to prove that a will is in fact invalid?

A court will always assume that a will is valid. Therefore the onus to prove that it is in fact invalid will be placed firmly on the shoulders of that person wishing to challenge it. If the court decides that there is in fact a doubt as to the validity of the will then burden will shift to those who wish the will to proceed in its existence to prove that it was in fact completed correctly.

Financial dependency on the deceased

If the testator fails to make provision for a dependant then that person is entitled to take action in the courts on the basis that the deceased had a responsibility towards them which was not discharged in the will.

Who can claim as a dependant?

A claim can be made by the following people as a dependant:

• A partner

• Minor

• Mentally disabled person who depended upon the deceased

The Inheritance Act 1975 provides for the situation whereby a relative that was financially dependent on the deceased at the time of death has a right to claim on the estate if they have been left out of the will.

What will happen if a dependant claiming on the estate is successful?

If a dependant claiming on the estate is in fact successful they will not necessarily be provided with a lump sum payment as others may be under the will. Often the court will grant this amount to be paid to the dependant through maintenance payments.

Are there any other grounds on which a will can be disputed?

• In certain instances the situation can occur whereby an original will is lost and the executor may attempt to prove a copy of the will and obtain a grant of probate.

• When a probate application is made to the court they can sometimes be challenged by beneficiaries of earlier wills who have not been included in the subsequent will and who believe that the will had not in fact been lost but was destroyed by the testator during their lifetime. If this can be proven it would mean that the subsequent will would in fact be invalid and the earlier one would be proven to be the correct will.

• However, this may be difficult to prove so it is a requirement that detailed evidence must be submitted to prove this claim.

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