What is The Point in a Will?
Here is the next in our series of guest blogs from Rosie Wright of Brixworth Wills.
In recent years there has been a growth in legal challenges to wills and some people question whether it is even worth doing a will if the courts can undo it. I would say, yes it is and the blog below explains why.
These claims are brought by disgruntled potential beneficiaries who feel they have been hard done by, usually these claims are brought by family members. There are a number of grounds on which wills can be challenged sometimes relating to the Testator’s obligation to provide for a person, such as a spouse or child. Claims on this basis are governed by the Inheritance Provision for Financial Dependants Act 1975 and the rules are strict. It can sometimes be seen as an easier route to challenge a will on more procedural grounds such as alleging the Testator did not know and understand the will that they signed, this is particularly useful if there is an earlier will that the disgruntled beneficiary wants to rely on.
A recent case heard in the High Court, Gupta v Aggrawala reminds us that with these claims there is a minimum bar that the Claimant needs to establish to be able to bring a claim on this basis. The case involved a will made by the late Mrs Gupta, the will was made in 1998 and was made at the same time her husband made a mirror will. The will predominantly benefited the younger son and the older son challenged the will. It was alleged that Mrs Gupta spoke very little English and that her husband was the driving force in the creation of the will and its provisions. There was very little good quality evidence available, the solicitor who made the will had been struck off and there was no will file available, the second witness could not recall Mrs Gupta, her GP could not be found and there was varying evidence available as to her capacity to speak English.
The High Court confirmed in their judgment that it is for the person challenging the will to demonstrate that the circumstances surrounding the will should arouse the Court’s suspicion. The starting point for the courts is that a will has been validly executed by a person with capacity and free from undue influence and it is for the challenger to provide evidence that this is incorrect. Only if this bar is reached do the courts look more closely at the circumstances and in this case where there was no evidence concerning the preparation and signing of the will the presumption that the will is correct was sufficient to defeat the claim. Thus highlighting the beneficial effect of a properly drawn up will.
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