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June 4, 2018

What about me – where is my inheritance?

It often happens that individuals expect to receive an inheritance only to find they have been left out. Do you think that the Last Will and Testament of the deceased cannot be revoked or challenged? Well it can in certain circumstances.

If someone believes a Will to be incorrect or does not reflect the last wishes of the deceased or is in anyway suspicious, they should be asking the following questions:

  • Has the Will been properly executed? In order to be valid a Will must be in writing and it must be signed in a particular manner. In most cases this involves the deceased signing in the presence of two or more witnesses who are present at the same time, and who sign the Will in the presence of the deceased.
  • Was this really the Last Will and Testament of the deceased? It may be that there is a later Will which revokes any earlier Wills. Certain checks can be undertaken such as searching the National Register of Wills.
  • Was the Will revoked by the deceased? If only a copy has been produced it may be that this Will has been revoked by the testator by destroying the original. Wills can also be revoked by marriage or annulment of dissolution of a marriage.
  • Did the deceased have the capacity to make a Will? The deceased must understand what he or she is doing and the extent of the property he or she is giving away in his or her Will.
  • Did the deceased know that he or she was signing a Will and approve the contents of the Will? In certain circumstances the deceased may have capacity to sign a Will but simply did not appreciate this was what he or she was signing or did not understand the contents of the Will.
  • Was the deceased being unduly influenced by anyone? It may be that the deceased was frail or vulnerable at the time of making the Will and that a third party had an influence over the deceased to make a Will in the terms he or she did. The question is whether the deceased would have said “This is not my wish but I must do it”.
  • Was it the deceased’s signature on the Will? If the signature on the Will does not look like the deceased’s it may be appropriate to consider whether the signature was forged.

In any of the circumstances set out above a Will may be found to be invalid. It is important to remember that if a Will is found to be invalid the previous Will is likely to be the one which will stand or if there is no previous Will then the deceased will be treated as having died intestate.

Even if the Will is valid and cannot be revoked, an individual who has been left out of a Will may still be able to claim reasonable financial provision from the deceased’s estate.

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