Defending a will

If you’re an executor of a will and someone makes a claim against a deceased’s estate then this information will be of use to you.

In recent years there has been a big increase in the number of claims being made against a deceased’s estate. An internet search for “how to challenge a will” reveals an extensive list of law firms offering advice and assistance on overturning a will.

Having a properly drafted will is no longer a guarantee that your loved one’s wishes will be followed. Increasing house prices, a more litigious culture, alternative family structures and stories of wills being successfully challenged are some of the reasons why more people choose to make claims.

Claims are commonly made on one of the following grounds:

1. The will does not make reasonable financial provision for an individual when it should have done

2. The validity of the will is challenged because:

  • The person didn’t understand the terms of the will because of mental incapacity
  • Undue influence was put on them to make a will in the terms they were made
  • The person didn’t know and approve of the will’s contents
  • The will was forged or in some way not executed correctly

The role of the executor

As an executor, you are responsible for proper distribution in accordance with the deceased person’s wishes. If someone decides to challenge the will, there are several things you can, and should, do as an executor.

Firstly, you must remain neutral. Will disputes are between the person making the claim and the beneficiaries of the estate. As an executor, you must act in the best interests of the estate, and make sure the beneficiaries are aware of the claim and seek their own legal advice. If you are both an executor and a beneficiary, it is crucial that you seek separate legal representation for each of your roles.  

Secondly, you should seek legal advice from the moment you are made aware of a challenge against the estate. Failing to act correctly could result in legal action being taken against you. A specialist solicitor will help you understand if the challenge has a sound basis and how to best proceed. It is important that the solicitor you choose to assist you was not involved in drafting the will.

Resolving the issue

Will disputes can be resolved through mediation between the parties, and court proceedings should be a last resort. At Churchers Solicitors, we have a dedicated Wills and Probate team which administers hundreds of wills each year. We understand how to support clients through the emotional strain caused when a will is challenged and how to put up the best defence to ensure, as far as possible, the wishes of the deceased are honoured.

If you have any questions about defending a will, please contact Matthew Bailey from our Contentious Probate team on 01329 822 333.

May 2018

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