Contested Estates

The number of inheritance disputes reaching court appears to increase each year. Often cases attract media attention with great human drama stories. The reality is usually more mundane. Changes in society mean that there are more complex family structures in place and this can make the division of assets between first, second and even third families seem contentious and create feelings of ill will.

Increasing property prices have also meant that what used to be small or modest estates can now be of substantial size and make the family think it is worth a fight.

The field of contention is generally split into two distinct areas. In the first place a claim that the division of an estate is unfair, and secondly an allegation that the will itself is not valid on the grounds of undue influence, lack of capacity or even fraud or forgery.

For a will to be valid it needs to comply with the requirements of The Wills Act 1837 which states that a will must be in writing and signed by the person making the will in the presence of two or more witnesses present at the same time.

Perhaps a more common ground for dispute is the allegation that the person making it did not have mental capacity – perhaps not surprising given the ageing population. The legal test for capacity to make a will requires the person to understand the nature and effect of making a will; the extent of the property which they are disposing; an appreciation of the claims to which they ought to give effect; and the person must not suffer from a “disorder or delusion” which could bring about a disposal which she or he would not otherwise have made. With elderly or infirm clients solicitors will often require a medical report to be prepared on the question of capacity.

We will look at financial provision claims in a forthcoming blog.

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