Did a Loved One Change their Will Just Before they Died?
A person is entitled to leave their Estate (everything they own) to whoever they want and to make changes to their Will at any time, either by making a new Will or adding to an existing Will. There’s only one situation in which a person may be prevented from changing a Will and that’s if it’s a Mutual Will.
Mutual Wills are very rare and not to be confused with Mirror Wills. Mirror Wills are common where, for example, a husband and wife leave each other their whole Estate and if the other has died, on the death of the survivor, the Estate is then shared between their children.
Mirror Wills can still be changed at any time, only mutual Wills cannot. However, the requirements for Mutual Wills to be effective are complex and you should seek legal advice from a Wills and Trusts Solicitor if you think this may apply to your situation.
What Must You Establish?
There may be many reasons why a person changes their Will, but a change of Will close to the time of your loved one’s death, or a change that fundamentally changes the terms of a previous Will, can lead to suspicion as to whether the person was aware of what they were doing or had been influenced by someone.
We often advise in circumstances where a Will has been changed shortly before the person dies and has excluded children in favour of, for example, a new partner, carer or someone who had only recently become close to the deceased. This kind of change to a Will can fuel suspicion that some form of coercion or undue influence was involved.
Furthermore, it can lead to concerns about whether the person had the capacity or knew what they were doing, perhaps because of problems with memory or dementia. This concern also arises frequently when a surviving parent who had previously made a Mirror Will changes the terms and appears to go against the wishes of the other parent.
What Can the Court Do?
It is possible to contest a Will and the Court will intervene to overturn a Will where either:
- The person lacked mental capacity
- There was undue influence
- The person didn’t understand what they were doing – known as lack of knowledge and approval.
However, the Court will require strong evidence to overturn a Will. There’s a presumption of capacity and you may therefore need to consider medical evidence and possibly expert input to show they weren’t able to make a decision for themselves.
Undue influence may also be difficult to establish because you have to demonstrate that someone wasn’t acting of their own free will when signing the Will - and this isn’t a straightforward task. The Court won’t intervene despite what may be perceived as suspicious or unfair unless you can show that there was a lack of capacity or undue influence.
Even if you can’t establish these requirements, you may still be able to make a claim under the Inheritance (Provision for Family & Dependents) Act 1975. This allows the Court to intervene in some cases for certain categories of relatives or dependants and vary the Will to allow for reasonable financial provision to be made for them from the Estate.
However, there’s no automatic or legal right for relatives, even a spouse, partner or children, to inherit a certain share of an Estate where a Will has been made.
For free legal advice call our Contentious Probate Solicitors
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