A battle of wills for unhappy families

generic of a will
generic of a will
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Money worries in difficult times could be ripping families apart in a messy battle of wills.

Where there’s a will there’s sometimes a war. Sheffield solicitor Carla Rist, who specialises in issues about wills and intestacy (when someone hasn’t made a will) for hlw Keeble Hawson, says that she has seen an increase in disputed wills over the past couple of years.

She believes there are a number of reasons, including people trying to gain money where they can in times of recession and more information becoming available via the internet.

Cases come to solicitors like Carla when someone challenges a will. They often involve family members who have been left out or believe someone else should not be entitled to a part of the estate.

Carla said: “People are living quite a bit longer. There’s a growing possibility of dementia and people going into nursing homes.

“You then have capacity issues, about whether the person had the nous or mental capacity to make their wills when they did.”

She added: “The main issues are the mental capacity of a person to make a will. They need to be able to understand they are making a will and what the effects are and the types and extent of property they’re disposing of.”

In one case Carla dealt with, a wife whose mental capacity came into question had left everything to an animal welfare charity, unbeknown to her husband, including half of the family home he was living in. That case is still going through the courts.

In another of her cases, a well-known charity challenged a will with an estate of £250,000 going to relatives because the charity stood to benefit from a previous will the person made.

Carla said: “That could have been overturned and gone back to the previous will when the charity would have got all of the estate but that challenge wasn’t successful.”

Sometimes her work involves trying to sort out exactly what the will intended, especially if it is incomplete or unclear in some way.

Carla said: “None of the cases that come through are the same, they’re very fact sensitive. Sometimes it is detective work on the capacity issues. We have to go on medical records and talking to people who knew them to build up an idea of what their understanding was.”

Rarer cases involve claims that the person making the will has been coerced or unduly influenced to make provision for someone. There are legal grounds to invalidate a will on that basis. Carla said: “These are difficult cases as the only person who really knows what was going on is dead.

“A will can be claimed as invalid if you can prove that the person didn’t understand what they were doing and somebody told them what to write. They need to understand and be lucid, which is not always easy to determine.”

Often in cases involving dementia patients the person making the will has times when they are completely lucid and aware and others when they are the opposite.

Making a will becomes more challenging too as our families become more and more complicated, Carla pointed out, with second partners, stepchildren and children from previous marriages.

She said: “One of the case we worked on, we were acting for the beneficiaries of an estate. A man had a son he hadn’t seen since he was three years old. He was about 40 when he made the claim.

“Because of who he was he had a potential case to make a claim. It was settled out of court and he did get some provision from the estate.”

Where possible, cases are settled through mediation as court costs can be expensive, sometimes eating up an inheritance completely.

Carla stressed that everyone is safer making a will through an experienced solicitor to ensure that their money goes where they intended it to.

She said: “People are trying to do their own wills, going and buying a form and filling it in and not understanding the complexities. If you leave your estate to Joe Bloggs and Joe Bloggs dies before you, what happens then?”

She had another warning: “Executors are quite often family members. They can get involved in something a bit more complicated than they expected.”