Securing Legacies

Published: 27th November 2008

We have previously looked at what steps should be taken when the payment of a legacy is not forthcoming from the executors of an estate. This month we will look at what happens when a Will under which your organisation is due to benefit is challenged by a beneficiary or potential beneficiary.

These challenges normally come in one of two forms. The first is challenging the validity of the Will itself. The challenge will either be that the testator did not have mental capacity to execute a will in the first place or that they were put under undue pressure by an interested party to execute a Will in a certain way.

As an example one of our team dealt with a matter where the Testator had fallen out with their children and changed their Will leaving everything to charity. The children challenged the Will saying the Testator did not have the mental capacity when they made the new Will. Following reports from the Testator's GP and solicitor it was clear that the Testator did have capacity and the claim was withdrawn

The other form of challenge is a claim by someone who asserts that they should have been provided for in the testator's Will and haven't been adequately provided for.

The law surrounding either type of challenge is complex and every case is different however the following points should always be borne in mind:

• Contentious probate cases are notoriously expensive and unpredictable and therefore early settlement is normally preferable.
• If your organisation is a charity then the charity trustees will be under an obligation to maximise the monies received by the charity under a legacy.
• In some cases there is a risk that the press will take an interest with the risk of adverse publicity for your organisation.
• In many cases there will be a number of parties who have the same interests and therefore could be jointly represented thus reducing costs.

It is often difficult to balance the above and it is important that advice is sought as soon as you are aware of a potential challenge to a legacy you are expecting.

If you are aware of a legacy due to your organisation which you believe may be subject to challenge and would like to discuss what steps you should take to protect it please get in touch.

For further information contact paul.bricknell@maceandjones.co.uk Tel: 01565 634 234