When Aretha Franklin died in August 2018 her family initially believed she had not made a will. Certainly nothing had been prepared by her lawyer. It was not until months later while clearing out her home that three handwritten wills were discovered, two made in 2010 stored in a locked cabinet and one made in 2014 hidden under a pile of cushions. Chaos ensued as nobody knew if any of the wills were valid and therefore how much each of her sons stood to inherit.
It is an all too familiar story, as an increasing number of people make notes about who they want to get what when they die but then put off going to see a solicitor to have a Will formally prepared.
‘Wills, hastily drawn up as someone faces imminent death, are particularly problematic and can often lead to a dispute.’ Cathal Murray of James McNulty & Co explains. ‘This is because, quite naturally, relatives and friends begin to question whether their loved one really understood what they were doing or not and if they might have made different choices had they had more time to think things through.’
If you have recently lost someone close to you who prepared a Will that you have concerns about then it is worth talking to a solicitor to find out if your concerns may be justified and, if they are, how you can go about challenging the will.
Grounds on which a Will can be challenged
A Will can be challenged in any case where the person making it:
(a) did not understand that he or she was making a will;
(b) did not understand the extent of his or her property;
(c) was not able to comprehend and appreciate the claims to which he or she should give effect;
(d) had a disorder of the mind which interfered with his or her sense of right or prevented the exercise of his or her natural faculties,
A Will can be challenged where there is evidence that it has been forged, or not signed or witnessed properly or where it does not comply with all necessary legal formalities.’
How to resolve a dispute over a Will
The first thing you need to do is clarify the basis on which to make a challenge and what it is you are trying to achieve. For example, do you want an earlier Will making better or fairer provision for you to be recognised, or do you want the current Will to stand but with a few adjustments to make it more reflective of what you believe your loved one would have wanted?
You then need to take advice on the prospect of any challenge being successful and your options for trying to reach an out of court settlement. There are various ways in which this can be achieved, including through direct negotiation with the executor and other beneficiaries or via the use of a mediation service where you feel having an independent, objective intermediary involved might be useful.
Were there is agreement that some adjustment to the current will is justified, then it may be possible to achieve this through a deed of variation which redirects some of you loved one’s money or property. This can also be a useful mechanism for helping to ensure that no one pays more inheritance tax than needed, which might not be something your loved one thought about in their rush to get their will completed.
Where attempts at an amicable resolution fail, then court proceedings may need to be considered. If so, you will need representation to ensure your case is presented in the best possible light and progressed as quickly as the court will allow.
The good news is that a high proportion of disputes about a Will are settled out of court, particularly in cases where early legal advice has been taken from an empathetic lawyer whose approach to negotiation is collaborative and constructive.
If you need help to resolve a dispute about a Will, either as a disappointed beneficiary or estate executor, please contact Cathal Murray by emailing firstname.lastname@example.org
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.