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  • Writer's pictureWayne Barnett FCA | MIPW | STEP Affiliate

Challenging a Will

A Will is a legal document that outlines a person's final wishes regarding their property and assets after they die. However, there may be circumstances where someone believes that the Will is not valid or was created under duress. In these cases, it may be possible to challenge the Will in court.


Grounds for Challenging a Will


The grounds for challenging a Will vary by jurisdiction, but some common reasons include:

  • Lack of capacity: If the person who created the Will was not of sound mind, lacked mental capacity, or was under duress, the Will may be considered invalid.

  • Undue influence: If someone exerted significant pressure on the person who created the Will to include certain provisions, the Will may be considered invalid.

  • Fraud: If the Will was created through deceit or fraud, it may be considered invalid.

  • Forgery: If someone signed the Will on behalf of the person who created it without their permission, the Will may be considered invalid.

  • Improper execution: If the Will was not properly signed and witnessed, it may be considered invalid.

Last Will and Testament document

To challenge a Will, a person must usually file a lawsuit in probate court. The process of challenging a Will can be complex, and it is recommended that anyone considering this action consult with an attorney who specialises in estate law.


The Process


It is important to note that the burden of proof is on the person challenging the Will. This means that they must provide evidence to support their claims, and the court will consider all relevant facts and circumstances in making its decision.


If the court finds that the Will is invalid, the assets and property outlined in the Will will be distributed according to state laws of intestacy, which determine how property is distributed in the absence of a valid Will.


When a Will is contested, the executor(s) normally takes a neutral approach so they aren’t responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly while the parties involved attempt to come to a friendly resolution or until the matter is resolved by an Order of the Court.


One common reason for challenging a Will is that it fails to make reasonable provision for a family member or, in the UK, where someone who was financially maintained previously has not been properly provided for in the Will.


There is no prohibition against someone making a claim against an estate and involving incurring legal costs in doing so, both for the claimant and the estate. Indeed a recent case allowed a “no win no fee“ agreement with lawyers for the related costs to be claimed against the estate.


Taking Steps to Defend Your Estate


In preparing both Cypriot and English Wills, Maplebrook Services endeavours to assess whether clients:

  • Have the mental capacity to create a Will without undue influence and understand it’s nature and effect;

  • Understand the extent of their estate being disposed of;

  • Recognise who they would usually be expected to provide for;

and to create the relevant appropriate documentation and meeting notes to demonstrate and defend the estate of clients from spurious claims.

 

For further information and assistance, please do not hesitate to contact our friendly team on 26 600780 or via email to info@maplebrookservices.com.

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