CONTENTIOUS PROBATE/DISPUTE A WILL

A Will is a legal document that helps with the distribution of your assets after your death and can appoint guardians for minor children. A will is important to have, as it allows you to communicate your wishes clearly and precisely.

A will is important because it ensures that the right people inherit what you leave behind, your loved ones are looked after and that your wishes are fulfilled when you die.

If you die without a valid Will in place this dictates how your money, property and possessions can be distributed. This may result in your loved ones not inheriting from you your estate as you may have originally intended.

We recommend that you review your will every few years or if your personal and/or financial circumstances change (such as marriage, divorce, children etc).

Yes, you can choose to not make provision for a person/people in your will at any time by changing your will (as long as you have the mental capacity to do so).

We would also advise that you prepare a side letter detailing your reasons for doing and that they have already been considered, so as to better evidence your intention should a claim be made against your estate in future.

A Will does not have an expiry date, however, you should be very mindful that if you have made a Will and your circumstances change, and current Will will stand unless your will is updated accordingly.

For a Will to be valid you must have it signed in the presence of two people, You must have the mental capacity to make the will and understand the effect it will have. You must also have made the will voluntarily and without pressure from anyone else.

You can prepare a Will yourself, or have a solicitor prepare it for you, however, if you prepare it yourself, you will need to ensure that you sign it in the presence of two independent witnesses.

Homemade wills may be prepared in such a way that the language used prevents your will from dealing with your estate. This means you could unintentionally die intestate, partially meaning some of your assets may pass to people not of your choosing.

Homemade wills are much more susceptible to being challenged because there is no independent evidence available to support their validity. In contrast, a solicitor is expected to keep a detailed file and make a contemporaneous note of all meetings and telephone conversations where instructions and advice were given.

These can be made available in the event of a challenge to the will to explain the decisions. This will make the challenge to the will more difficult and either then deter the claim or make it less likely to be successful. 

The solicitor will ensure the will is properly executed in accordance with the legal formalities required.

The person dealing with the estate of a person who has died is called the executor of a will or an administrator.  An executor is named in the Will as being responsible for dealing with the estate.

An administrator may have to apply to the probate registry, the court that deals with any probate applications before they can deal with the estate.

An executor has a legal responsibility to carry out the provisions of the Will whose duties include the original Will, sorting out finances and applying for probate.

You can use your will to appoint guardians for your children to determine who will look after your child/children if they are under the age of 18 when you die.

The courts will be left to decide who takes care of your children. This will usually be a close relative, but it may not necessarily be the person you would choose.

When one parent dies, the surviving biological parent can look to obtain custody of the child.

It is important to note that the law is not biased towards certain genders. Therefore, if a mother of a child dies the biological father of a child can obtain custody.

A living Will is used when you can’t communicate or are unable to make your own decisions. It allows you to refuse treatment, even if this leads to your death. 

The people that are caring for you will need to carry out any wishes and must follow your instructions.

If a beneficiary dies before you, and someone else is not named to inherit the gift in their place their gift lapses as if it never existed.