I've come across a couple of situations recently where an estranged
family member has only learned about the death of a parent after the fact. There
is of course huge emotional fallout from this; an estranged parent is still a parent.
A death will bring up many emotions and feelings, even without the
complications of who inherits their estate. In one circumstance, the daughter
had been recently reconciled with her father and had been expecting to inherit part
of his estate on his death - he told her so. However, when details of the will emerged after death,
she was not part of it. Was there anything she could do, she asked? Could she
challenge the will? It surely was wrong - he couldn't have meant to do that,
she said.
Quite apart from making a claim for legal rights on death, it is possible to challenge the validity of a Will on three basic grounds –
1. The Will is not valid because it has not been executed properly
2. The testator didn’t have capacity to make the Will ie he didn't understand what he was doing at the time of signing the Will
3. The testator was under undue influence from someone else to make a Will in a certain way
The solution to the first situation can be to “set up” the Will by application to Court, often by obtaining affidavit evidence from a third party who can confirm the testator’s signature, or that they were present at the signing but the testator forgot to sign each page and so on.
The solutions to the second and third situations are not so easy. It requires a body of evidence of incapacity or undue influence and a Court action to ask the Sheriff to rule that the Will is not valid on the basis of that evidence. Gathering sufficient evidence can be very difficult; it can require opinions from doctors as to mental capacity at the time of signing the will and affidavits from people confirming the nature of the influence that somebody held over the testator.
In my case the daughter simply had insufficient evidence that her dad didn't know what he was doing. On the face of it, he chose deliberately to exclude her from the Will for whatever reason he may have had at that time, and there was very little evidence to indicate otherwise.
It is always worth seeking legal advice regarding the possibilities after death but in my experience it can be very difficult to achieve the necessary standard of evidence to overturn a Will. It is much better, if possible, to ensure that a testator gets legal advice during lifetime and perhaps encourage them to leave a letter to explain any unexpected omissions or inclusions in their Will. Often, it is the not knowing “why” that is most difficult for the family left behind.
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