Making Ill will


Disputes concerning wills and inheritance can be tricky and sensitive, and the courts have jurisdiction to make changes, says Kavita Rana from local solicitors Edwards Duthie Shamash

When a person dies, their estate is administered in accordance with their wishes in the will. If the deceased does not have a will and dies intestate, the intestacy rules govern the distribution of the estate.

There are a number of grounds to contest a will. One ground considered by the courts is whether the deceased had the relevant mental capacity to understand their decisions at the time the will was signed. A person making the will must be of ‘sound mind, memory and understanding’. Dementia and old age is often a common complaint in deciding whether the deceased had capacity, but it is not the only factor. A failure to satisfy the test could result in the will being invalid.

It is important that any lawyer advising on the will checks whether the person making it understands the consequences of their actions and is of sound mind. If this did not happen, you may have a claim in negligence against the professional.

A will can also be overturned for undue influence. If you feel the deceased was pressured, forced or coerced into making the will or the content of it, this may give rise to an action to declare the will invalid.

If an individual feels they have been inadequately provided for in a will, this might result in a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The law allows close family members and dependents to apply to the courts for reasonable financial provision from the estate, where there is inadequate provision in the will. Here, the will remains in place but the law protects individuals in certain circumstances. The court’s award will depend very much on the individual circumstances.

If an individual relied on the deceased’s assurance of property and acted to his detriment as a result, the courts have jurisdiction to enforce the promise and order that the property is transferred from the estate to the individual, even if the will does not provide for this.

In the recent case of Gee vs Gee, the court found in favour of a son, John, who was cut out of a promised inheritance of farmland worth in the region of £8m. John worked on his father’s farm since the 1970s for low pay and gave up his own career in reliance on his father’s promise that he would receive “the lion’s share” of the farm. Before he died, the father transferred the asset to his other son, Robert, in 2014. Despite this, the court awarded John a 52% controlling interest in the farm and 48% interest in the land.

Edwards Duthie Shamash is located at 149 High Street, Wanstead, E11 2RL. For more information, call 020 8514 9000 or visit edwardsduthieshamash.co.uk