If you are not happy with the terms of a Will but are afraid to dispute the Will because it was made by a solicitor, do not despair. You can successfully dispute a Will drafted and witnessed by a solicitor. In June 2013, The Estate Lawyers did exactly that on behalf of a client. We disputed a Will made by a solicitor on behalf of one of our clients and the Court set the Will aside.
There are generally two ways to dispute a Will. The first way to dispute a Will is to say that no matter how the Deceased person left their estate in their Will, they died without leaving you with enough money to meet your financial needs. In those circumstances you can bring what is known as a family provision application. To succeed in a family provision application, you don’t need to show that the Deceased did not know what they were doing. Instead you just need to show that their Will in all of the circumstances did not leave you as their spouse, child or step-child with enough money. This usually happens because a Will is old and the person died without updating it to reflect changes in your family dynamics or a change in their financial position. It is therefore irrelevant to your Will dispute whether the Will was made by a solicitor because it is the contents of the Will that matter and not anything the solicitor might have done.
The second way to dispute a Will, which was successfully pursued by The Estate Lawyers, is to say that the Deceased person did not know what they were doing when they signed the Will and therefore they did not have testamentary capacity. You can seek that the Will should be set aside on this basis. A solicitor’s job is not to determine whether a person has capacity when they make a Will. A solicitor’s job is to take instructions, document those instructions and then prepare the Will. Whether the Deceased had testamentary capacity at the time the Will was made is a matter for the Courts to decide based on all of the evidence, and is not decided based on the solicitor’s opinion because the solicitor could simply be wrong or acting without knowing all of the relevant facts about their client.
In the Trial recently won by The Estate Lawyers’ client, the Will was made and witnessed by a solicitor. The Estate Lawyers’ client disputed his father’s Will on the basis that his father did not have testamentary capacity when it was made. The solicitor was adamant that his father did have capacity to make the Will and gave evidence at the Trial. However, the statements that the Deceased made about his personal affairs to the solicitor when the solicitor met with the Deceased to sign the Will were wrong. The Judge looked at the Deceased’s medical history which included dementia and the progress notes of the nursing home where the Deceased was living when the Will was made and saw numerous instances of the Deceased’s confusion and disorientation. The Judge concluded that despite the solicitor’s honest belief that the Deceased did have capacity, due to all of the other evidence, the Deceased did not have capacity when the Will was made. The Judge, despite the solicitor’s opinion, set the Will aside so that the earlier Will was to apply to his estate.
If you want to dispute a Will for any reason, contact Kent Dalziel from The Estate Lawyers.