In December, after five years of hard work and study I was successfully rewarded with the recognition of becoming a fully qualified member of the Association of Contentious Trusts and Probate Specialists.
Being welcomed into a group of such highly skilled Lawyers is a real achievement, particularly as it recognises the work which I, and others, in this area do tirelessly to help grieving families.
“As Lawyers we often use terminology that we become used to to describe the work that we do”
But what is contentious trusts and probate I hear you say? As Lawyers we often use terminology that we become used to to describe the work that we do. Often we forget, that for those we wish to help, these words do not adequately explain the options and assistance that is available to them and many may be left not realising that there can be help available for them in their time of need.
With the rise of couples living together without getting married and the apparent increase in homemade wills and unregulated Will draftsman, we are seeing a huge growth in the enquiries we receive but awareness still needs to be raised.
So what are some of the areas which I am talking about.
Challenging a Will
There is a steep rise in the number of enquiries my colleague Nicola and I are receiving with regard to the potential challenge against a Will when a person has died. There are a number of possible ways that this could be done, some of which are:
For a Will to be valid the legal formalities of section 9 of the Wills Act 1837 must be complied with. Basically, this means that the Will must be signed by the person making it, in the presence of two witnesses who must themselves see the person making the Will sign, and then sign the Will themselves in that person’s presence.
This may seem straightforward, but with the rise in DIY home-made Wills, often people making a Will are not aware of these formalities and this can lead to Wills being invalid. If a Will has not been signed in accordance with the section 9 formalities it is not valid and there is nothing that can be done to remedy this.
In order for a Will to be valid the person making the Will must have the mental capacity to make the Will. The test in the case of Banks v Goodfellow is that the person making the Will must:
• Understand the nature of making a Will and its effects;
• Understand the extent of the property of which they are disposing;
• Be able to comprehend and appreciate the claims to which they ought to give effect;
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
A person is assumed to have capacity unless it is proven that they did not at the time of making the Will.
In the law of England and Wales, a person can leave their estate to whomever they choose. Sometimes, if a person has recently changed their Will, or has left their money to someone unexpected, this can give rise to a suspicion that they had been unduly influenced by that person to change their Will.
There is however no presumption of undue influence and the burden is very high on anyone seeking to prove this.
BLOG: What Happens if my Will is Found to be Invalid
Making a Will is one of those tasks that often gets overlooked, however the importance of having a Will is clear. Without a Will, your assets will be distributed following the rules of intestacy which might mean that your assets are passed to someone who you may not have chosen. However, whilst having a Will is important, having a valid Will is paramount!
A Blog by Joanne Gibson
Claims under the Inheritance (Provision for Families and Dependants) Act 1975 (“the Inheritance Act”)
One of the least well known and biggest growing areas which my colleagues and I are seeing in practice are claims made against a persons estate by someone who has either not been named in a Will or if there is no Will, does not inherit automatically under the rules of intestacy.
There is a common misconception that when a couple who are not married live together they become common law husbands and wives. There is no such legal principle, and if a cohabiting couple have not made Wills to benefit one another and one of the couple passes away, the other cohabitate will not Inherit from the others estate under the rules of intestacy. This often leads to a situation where children of the deceased person to whom the deceased may no longer speak inherits the estate leaving the surviving cohabitant penniless or homeless.
In such circumstances it may be possible for the surviving cohabitant to bring a claim under the Inheritance Act for reasonable financial provision.
It is important to act quickly as there are strict timescales for making any claim which must be made within six months from the Grant of probate or Grant of letters of administration.
It may also be possible for other people to make a claim under the act, such as spouses, children, or someone who has been maintained by the deceased prior to their death.
Early advice is vital to ensure that a claim can properly be made.
This is a challenging and often rewarding area of law, and I am proud to be one of a minority of specialist solicitors who offer this service and part of a thriving department at Thornton Jones who cater for this need.
The Rules of Intestacy determine how a person’s estate is distributed if they die without a valid will. Under these rules, only spouses, civil partners, and close relatives (children, grandchildren, parents, and siblings) can inherit. Unmarried partners and friends are not entitled to anything. The specific distribution depends on the size of the estate and the surviving relatives.
A will must be witnessed by two independent adults who are present when the will is signed. Witnesses must not be beneficiaries or the spouse/civil partner of a beneficiary; otherwise, they forfeit their inheritance under the will. The witnesses must be over 18 and of sound mind.
To avoid mistakes, it’s advisable to seek professional legal advice when drafting your Will. A solicitor experienced in Will writing can ensure the document is legally sound and clearly expresses your intentions. They will ensure the necessary formalities are met, such as proper witnessing, and that the language used is clear and unambiguous. Additionally, regular reviews and updates of your Will are important, especially when there are significant life changes, such as marriage, divorce, or the birth of children.
Contact us
Our team at Thornton Jones is here to assist. If you need help and advice with making or updating a Will then call us today.
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Ossett office on 01924 586 466
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
