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Circumstances Support Will Challenge

26 April 2012

Preventing a family member from benefiting from your estate can be fraught with difficulty, even if the family member in question cannot claim to be a dependant and so is not able to make a claim on your estate under the Inheritance (Provision for Family and Dependants) Act 1975.

A recent dispute, which was settled out of court, illustrates some of the issues that can arise. It involved the estate of a man who changed his will in 2010, when he was terminally ill, in order to exclude his son and grandchildren from the lion’s share of his estate. Under the revised will, the bulk of his estate was to pass instead to a friend. In this case, the son was not a dependant, so the 1975 Act was not in point.

A few weeks after seeing his solicitor and changing his will, the man died. His son contested the will. It was his contention that his mother, who had died in 2001, had quite specifically stated at a family lunch that she wanted her half share in the family home to pass to him. Although his parents’ wills provided that their estates would pass firstly to the surviving spouse, he claimed that there was a strict understanding that her wishes would be heeded as regards her share in the home.

The son alleged that the new will had been procured as a result of undue influence, but there was sufficient evidence from his late father’s solicitor and doctor that this was not the case and that he was of sound mind when the will was drawn up.

However, the argument that his father and mother had made ‘mutual wills’, or had created what lawyers call a ‘secret trust’ (i.e. a promise to benefit someone not specifically named in the will), did carry weight and the case was settled out of court with the son receiving an appropriate share of the estate.

We can advise you on any potentially contentious issues in the terms of your will or regarding an estate from which you believe you should benefit.

For more information on this subject or any other legal matter,
please contact us:

Tonbridge: 01732 770660
Sevenoaks: 01732 747900
Email: [email protected]