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25 September 2018

Does a will pass ‘the smell test’?

What can those left behind do if a will presents them with unpleasant surprises?

Under English law, people are generally entitled to leave their property to whoever they please, and this can mean that their wishes can turn out not to match the expectations of the family. Sometimes, however, there is more than that: a will just does not seem quite right; it does not pass the ‘smell test’.

Possible red flags include a will signed when the deceased was physically or mentally frail, a will that departs substantially from earlier wills, a large gift left to someone caring for the deceased, or nothing being left to someone who might reasonably have expected something. Where there are suspicions that a will may have been the result of interference, forgery or another form of unwarranted meddling, there may be grounds to challenge the will.

It is easy to feel that ‘now is not the right moment’ but, if you have concerns, seek advice quickly. Since the one person who could explain exactly what led him or her to sign the will is no longer around, it will be necessary to gather independent evidence. Memories fade and documents get misplaced, so this is best done while the trail is still relatively fresh. This could be anything from officially requesting medical records (to see if the person who made the will was suffering from mental infirmity) to having a chat with their neighbours (to explore whether anyone was preying upon the deceased).

Take your concerns to a specialist solicitor as soon as possible. One possibility is to lodge a ‘caveat’, an inexpensive tool that prevents progress in the administration of an estate. This buys time to build a case. From there, depending on the facts, it is possible either to make a formal challenge to the will in court or to begin negotiations with the other parties.

If a challenge to the will does not look likely to succeed, it is not necessarily the end of the road. Under some circumstances, a claim for ‘reasonable financial provision’ from the estate may be possible. Again, swift action is needed as a claim of this sort can only be brought within six months of the grant of probate issuing.

So while the period following someone’s death is an emotional time, it is not a time to delay if things do not seem quite right.


        

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