According to Direct Line, almost a quarter of British adults would be prepared to enter into challenging a relative’s Will in court if they disagreed with the testator’s wishes regarding how assets are divided.
Grounds for Challenging a Will
A person may establish a claim to contest a Will through several possible avenues. First, they can claim the Will itself was not executed properly or that the correct process was not followed, leading to a probate claim. If successful, the Will would not be admitted to probate, the administration process for the testator’s estate.
It may also be possible to challenge the assets the estate consists of. This could be known as a claim in equity, where a beneficiary maintains that they were promised an asset from an estate and relied on that promise to their detriment.
A person could look at lodging a claim under the Inheritance (Provisions for Family and Dependents) Act 1975 where they believe that they have not been adequately provided for in a Will (or via Intestacy where there is no Will).
Validity to Challenge a Will
A valid legal reason is needed before challenging a Will; the following are the most common examples:
- Lack of testamentary capacity – a testator must have the ability to make a Will. They must understand the effects of a Will, and understand how they are dispersing their property and whom the beneficiaries are.
- Lack of approval or knowledge – the testator must know what was written in the Will when they signed it and approve the contents.
- Undue Influence – the testator must not be forced or coerced into changing the Will.
- Forgery or Fraud – a Will can be contested if it is believed to have been forged.
- Validity of the Will – a Will is deemed invalid if it does not follow Section 9 of the Wills Act 1837, i.e., if it was not signed, witnessed, or executed correctly.
- It goes against the Inheritance (Provision for Family and Dependants) Act 1975 – if the Will unfairly excludes someone the deceased was financially responsible for, a claim could be made against the estate.
Larke v Nugus Request
A Larke v Nugus request originates from a case of the same name, whereby the Court of Appeal confirmed that a professional who drafts a Will should provide information about the preparation and execution of the Will to an interested party on request. The Larke v Nugus request comes as a list of questions; it can be extremely daunting to receive and costly to prepare a response to. The best way to be prepared for a Larke v Nugus request is to always ensure that you are ready with a well-documented and organised Will file.
CTT Legacy Software
CTT Legacy software contains everything you need to ensure your case file is all in one place and makes dealing with a Larke v Nugus request easy. It provides you with our Tripartite Risk Reduction Strategy – the Disclaimer, and Execution Statement. In addition to this, there is the Will Clarity Statement.
All the information relevant to the Will-making process is covered in the Will Clarity Statement. This covers the history of the instruction-taking process as it progresses between you and your client, alongside details surrounding their testamentary capacity and reasons for any departures from previous Wills. Additionally, it is signed by the client to confirm the instructions given and processes followed during the making of the Will, going one step further than a traditional Larke v Nugus response drafted after the death of the testator. As Larke v Nugus requests are made after the death of the Testator this can be many years after the Will was prepared and drafted, meaning it is difficult to recall all of the details if they are not properly recorded at the time.
If the Will is contested, then the file will be heavily scrutinised by the parties looking to contest the Will. Sometimes after receiving the requested information in the form of a Larke v Nugus, the interested party can be satisfied that there is no opportunity to make a claim. This is why it is necessary to respond to these requests as efficiently and fully as possible.
The CTT Legacy software can ensure that you are equipped to respond to a Larke v Nugus request. Additionally, our Client Care Team can also help if you receive a letter challenging the validity of a Will you have drafted and you are not sure how to proceed. In addition, our ‘Know your Client’ and Foundation Courses, which can be found here, contain further help regarding instruction-taking.
Sign up for membership today and enquire about our CTT Legacy Software so that you can protect yourself and your client as part of the Will-making process.