Will disputes usually arise when there are concerns over the validity of the deceased’s Will and there are several grounds for contesting the validity of a Will: –
What are the grounds for disputing a Will?
Here are the main grounds for disputing a Will:
- Mental Capacity
To satisfy this ground, it must be proven that when making the Will, the deceased did not have the required mental capacity to:-
- Understand the nature of making a Will or the effect that the Will would have;
- Understand the extent of their property;
- Appreciate the claims to which they ought to give effect.
Further, a person will lack capacity if, at the time when preparing the Will, they were unable to make a decision because of an impairment or disturbance in the functioning of their mind or brain.
Medical records will play an important role when considering the capacity of the deceased.
- Inability to approve the content of the Will
Suspicions may arise if the deceased could not fully understand their Will or how it operated. This may be because they were visually impaired, hard of hearing, vulnerable or had low levels of literacy.
If suspicions are raised, it will be for those who consider the Will as being valid to prove that the deceased fully understood the contents of their Will.
- Undue influence
The nature of this allegation is equivalent to fraud and as such, to satisfy this ground there must be sufficient evidence to convince the court that the deceased was coerced or unduly influenced by another person when creating the Will.
To satisfy this ground, the court must be satisfied that the deceased would only have drafted their Will in this way due to actual undue influence by another person and that there is no other reasonable explanation as to why the Will has been drafted in this way.
- Fraud or Forgery:
There are few examples of fraud, but this can arise if someone has impersonated the deceased when providing instructions or signing the Will.
To satisfy the ground for forgery, it must be proven that the deceased did not sign their Will. An opinion of an expert in handwriting will play an important role when considering the signature of the Will.
Investigations over the validity of a Will should be made as soon as possible and certainly before any administration of assets has taken place. It will often be that witness evidence is required to assist in proving one of the above grounds and as time passes, memories can weaken. Further, gathering information from third parties can take some time.
The role of Mediation in resolving Will Disputes
Mediation is an alternative process that allows parties to try and resolve matters outside of court with the involvement of an independent third party known as the mediator. It is a form of dispute resolution that can be tailored to the parties involved, avoiding the costs and stresses of going to court.
What does mediation involve?
Mediation is a voluntary process. The parties can choose the mediator and agree when, where and how they want to mediate. The mediator will often be a professional who has legal knowledge and understanding in the area of dispute. The mediator’s role is to facilitate discussions and negotiations between them with a goal of reaching a settlement that both parties are agreeable to.
A mediator will remain neutral throughout the entirety of the mediation process and parties can have their own legal representation with them.
What are the benefits of mediation?
Mediation is used in variety of disputes and can be an effective alternative to litigation as it is often much quicker, less expensive, and the parties have more control in resolving any dispute, rather than a decision being imposed on them by a judge.
It is a confidential process and encourages parties to actively participate in settlement negotiations without the fear of any negotiations being held against them later.
Does a settlement have to be made at the end?
Not all mediation will end in settlement. Parties will not be forced into any settlement and can withdraw from the process at any time.
How does mediation help with Will disputes?
Will disputes often arise between grieving family members and litigation can create unwanted rifts or strained relationships. Mediation is a much more informal approach and allows each party to address their grievances and can hasten the administration of the estate all whilst trying to preserve those family relationships.
More importantly, the cost of litigation is high and can lead to the estate being depleted of its assets. Opting for mediation is much more cost effective, especially before issuing any court proceedings.
Will Dispute Solicitors Lincolnshire and East Yorkshire
Bridge McFarland LLP’s specialist team of Will dispute solicitors includes members of the Association of Contentious Trust and Probate Solicitors and the Society of Trust and Estate Practitioners. We are based in Grimsby, Hull, and Market Rasen and are happy to speak to you regarding your Will or probate dispute and discuss ways to work towards resolution since any dispute, no matter the size or complexity, is stressful for all those involved. Call us on 0800 987 8800 today or email enquiries@bmcf.co.uk
