A person is generally free to make a Will and choose who they would like to deal with their Estate and to whom their Estate should pass after their death. This is subject to a number of exceptions, the most common exceptions that we deal with are as follows:
- Lack of Capacity – when a person executes their Will, they must have the necessary mental capacity to do so. Accordingly, they must understand what they are doing and the extent of the property which they are giving away in the Will. Further to this they also need to comprehend and appreciate the claims to which they ought to give effect. There must be no disorder of the mind that poisons their affections or perverts their sense of right or prevent the exercise of their natural faculties.
- Lack of Due Execution – no Will is valid unless it is in writing and signed in a particular manner. This will involve the person making a Will signing at the end of the document and their signature being witnessed by two or more witnesses who are present at the same time.
- Undue Influence – a Court may order that a Will is not valid if it determines that it was the result of undue influence. Actual undue influence is necessary and evidence of coercion is usually necessary. A claim for undue influence should never be put forward unless the party bringing the claim has reasonable grounds to support it.
- Claims under the Inheritance (Provision for Family and Dependents) Act 1975 – the law provides that spouses or civil partners of the Deceased can bring claims for reasonable financial provision whether or not required for maintenance. Further to this, former spouses and civil partners may be eligible to bring claims and a person who has cohabited with the Deceased for two years prior to death may also be eligible. A child or person treated as a child of the Deceased may also be eligible to bringing a claim for reasonable financial provision and also any person who considers they were maintained by the Deceased may also be able to bring a claim. One important note in relation to these types of claims is that any claim must be issued within 6 months of the date of the Grant of Representation. If not, then a request for permission will need to be submitted to the Court and the potential Claimant risks being time barred.
If you need any assistance with these kinds of matters, please contact Andy Hambleton or Emma Wiltshire who both work in our Wells Office.
