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Can somebody contest my Will if they haven’t been included in it?

 

 

 

Zoe Davis | Trainee Solicitor 

Despite having a Will, there is a chance that your Estate can become contested. But there are steps you may want to consider to help to prevent any future claim being made. 

Why would a claim be made against my Estate? 

You may think it is highly unlikely that a claim will be made against your Estate, but contested probate claims are on the rise.  As more marriages end in separation and more people have children from various relationships, there are more potential beneficiaries to an Estate than there have been in the past.  There are different ways a person can make a claim against an Estate.  It is important that you do everything you can to prevent a claim being made while you can so that your wishes are carried out when you die.  

What claims can be made against my Estate and how to try to prevent them? 

Inheritance (Provision for Family and Dependants) Act 1975 Claim (“Act”)

This Act allows certain classes of people to challenge a Will because the Will did not make reasonable financial provision for them. It is usually a spouse or child who is cut out of the Will.  These claims are often brought when there is no Will, however, they can and are made when there is a Will

It is important to get your Will professionally drafted so that you are sure it says what you want it to say, but also so you can get the best advice on how to try to prevent a claim being successful. For example, if you want to leave someone out of your Will who would usually be presumed to inherit, there are extra protections you can put in place to prevent a claim under the Act. The best way to do this is by making an Inheritance (Provisions for Family and Dependants) Act 1975 Statement. This is a signed document explaining why you are excluding someone from your Will. 

Lack of Testamentary Capacity

Another way for someone to make a claim, is by claiming that you lacked the relevant testamentary capacity to make your Will.  Our solicitors will consider your capacity when taking instructions for your Will which can help prevent a claim being made for lack of testamentary capacity.  

You can also consider having a GP capacity assessment done as well.  This would involve your GP carrying out a capacity assessment and to determine whether you have the relevant capacity to make a Will.  This will ensure that any such claim is unlikely to be successful provided your meeting with your GP is either on the same day or the day following the day you sign the Will.  Even if there are no concerns regarding your capacity, you should consider a GP capacity assessment for extra piece of mind, especially if you think someone will contest your Will in the future. 

Undue Influence 

Your Will can also be contested on the basis that you were unduly influenced into making it, usually by a carer or someone in a position of control over you.  Having your Will professionally drafted can help prevent a claim such as this being successful as solicitors keep detailed records regarding the drafting of your Will. 

It is therefore important that you don’t just make a Will, but that you have it drafted by a solicitor.  If you have any questions about either making a Will, or a Contested Probate Claim, contact our offices on 0116 255 1811 or on our website for more information.

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