December 14, 2012 10.14 am This story is over

Lincoln Lawyer: Where there’s a will, there’s war

Will disputes: This week’s Lincoln Lawyer looks at the issues surrounding wills, and why they are best done professionally.

Nothing is certain but death and taxes, so the proverb goes. And in death is the final chance to determine how your hard earned money is distributed. This is done by a will, and in this important document most of us reflect family ties, friendships and charities.

Sadly, many do not make a will at all and then what is called the law of intestacy says where the money goes; and it does not necessarily all go to the surviving spouse or civil partner. In the worst case everything could go to the Crown to help pay off the national debt!

A will is essential if you want to be certain what is to happen after you die. And a professionally drawn will is the best way to ensure that certainty.

The law gives those of us over the age of 18 and of sound mind the freedom in a will to dispose of our assets after death in any way we wish. But, as we have seen, few things are certain, disputes can still arise, and have a habit of bringing out the worst. At a time of grief. And the star witness has just died!

There are two types of dispute I see. First is over the will itself. To be valid a will, it must comply with the Wills Act 1837, which sets out the formalities. These formalities are strict and it really is not worth taking the chance to do it yourself with a will or use anyone other than a solicitor specialising in this field.

It is often claimed that the testator (the person who made the will) was not of sound mind, that he or she lacked the legal capacity to understand what they were doing when the will was made. With Alzheimer’s Society estimates that by 2025 there will be over 1 million people suffering from dementia in the UK, this issue is only going to become more frequently raised.

Then there is what lawyers call undue influence. This is the subtle influence over the testator’s mind which coerces him or her into making a will against their true wishes.

Finally, we have cases of a will being forged or there being some fraud such as destroying a later will so that an earlier will is used instead.

The second type of dispute is over the inheritance. These disputes have as their basis the snappily entitled Inheritance (Provision for Family and Dependants) Act 1975. This gives a Judge the power to, in effect, re-write a will in order to give some (or more) of your money to certain people such as a spouse, partner or children who feel they should have left been more.

If you feel you may be affected by any of the issues raised here then it is important to seek urgent legal advice.

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Andrew Morley joined the legal profession in 1982 with a desire to put right injustice. Learning on the job whilst undergoing academic study, he entered private practice and qualified into the Fellowship of the Institute of Legal Executives in 1990, and joined McKinnells solicitors in Lincoln in 2004. Brought up in a village not far from Lincoln, Andrew is a keen cyclist and once completed the Lands End to John O’Groats ride for no better reason than is was there and it seemed like a good idea.