A loved one dying can be a traumatic and difficult time. But
disappointment and even resentment may replace sadness if those
close to the deceased have not been provided for in their will.
Collas Crill's David Jeffery anticipates that, with the new
inheritance law in force (as of 2 April 2012), the Guernsey courts
will see wills being challenged. Here, he explains the options
available to contest a will but warns that making a challenge is
not without risk.
The Inheritance (Guernsey) Law , 2011
Until now, anyone living in the Island with a spouse and/or
children, has been forced to leave at least part of their property
to them. With the law now in force, a person making a will can
leave their property to whoever they want.
There now exists two primary grounds for challenging a will. The
first is a claim under the law itself, which abolishes forced
heirship but provides for certain people to bring a claim alleging
that the will does not make reasonable financial provision for
them. Those eligible are the deceased's:
spouse or civil partner, or former spouse or civil partner (if
not re-married or in a new civil partnership)
co-habitee (living together as if married for at least 2 years
before the death)
children, or step-children who the deceased treated as a child
of the family
anyone else who, immediately before their death, was
financially maintained by them.
"Dependency claims" like these have generated some
important decisions from the English courts, which are likely to be
highly persuasive when our courts are asked to consider the
inevitable influx of claims made locally.
The second ground for challenging a will is to claim that the
will is invalid, for example because:
the deceased did not know or approve the content (particularly
if s/he had been seriously ill at the time it was signed)
they lacked the necessary mental capacity
there was some procedural or administrative error, e.g. lack of
signature or lack of a witness.
that the deceased was coerced and influenced into making the
will. (It should be noted that claims alleging undue influence are
notoriously difficult to prove and are seldom successful.)
In considering whether to challenge the validity of a will, you
should give careful thought to what will happen if the court case
is a success. If a will is declared invalid, the terms of an
earlier will might be considered or the laws of intestacy could
apply. If this means that you would be worse off, there would be
little merit in going ahead.
If any of the above applies to you, contact a lawyer who
specialises in this area of law at an early stage. Ploughing head
first into litigation, without understanding the merits and costs
implications of a claim, can have dire consequences. Consider, too,
the likely impact a legal challenge will have on relationships
within your family.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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