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08 March 2023
Can I challenge my brother over my mother’s will?
Lucinda Brown, partner in our will and trust disputes team, answers a reader’s question regarding the challenging of a change to a family member’s will, in an article for the Financial Times. In her response, she sets out the circumstances in which you are able to pursue a claim over an invalid will, according to the law in England and Wales.
‘Obtaining evidence as to undue influence is more difficult as the nature of undue influence is that it tends to happen when no one is watching. If the will was homemade and was not drawn up by a solicitor, or your brother assisted in the drafting of the will, these facts may assist a claim in undue influence.’
‘If you have positioned your life on your inheritance and your mother made express promises that you would receive half of her estate, you may be able to bring a claim in what is known as ‘proprietary estoppel’ in England and Wales. Here, you would need to establish that promises were made, that you relied on the promises to your detriment and it would be inequitable for the court not to intervene to uphold the promises. If you wanted to take action while your mother was still alive, you could consider applying to the Court of Protection for an order that a statutory will be put in place which properly reflects your mother’s wishes for her estate. To commence such an application, it would be necessary to establish (through a doctor’s report) that your mother lacks capacity to make a new will and you would need to give evidence as to what your mother’s longstanding wishes were for her estate and why the latest will does not reflect those wishes.’
Subscribers can access Lucinda Brown’s full reply via the Financial Times website.