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Lisa Lawyer
Lisa Lawyer, Solicitor
Category: Law
Satisfied Customers: 106
Experience:  Qualified solicitor
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My sister in law is questioning my late uncles will.I have

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My sister in law is questioning my late uncles will.I have answered all her questions relating to his will.They are now waiting for the affidavit from the two witnesses to confirm everything he said before I wrote his will for him because he wanted me to his will for him .He was 96 when he wrote his and was sound of mind which his doctor will verify.My question is how long does she have before she decides to take it to court to see if the will is valid.I have heard it is fourteen days from when her solicitor receives the affidavit.

Thank you for your question. My name is Lisa. I am a solicitor and I would be happy to assist.

The time limit for challenging a will depends upon the grounds upon which that the challenge is brought.

Any beneficiaries under a will who wish to contest part or whole of the will, have up to 12 years from the date of death. Alternatively, where the will is challenged under the Inheritance Act 1975 (by dependents of the deceased seeking to prove that they were not sufficiently provided for in the will), such challenges must be made within 6 months from the date of that probate was granted.

If the nature of the claim relates to fraud, however, there is no time limit.

In any event, whatever the grounds for the challenge, the relevant time period will be greater than 14 days.

I hope that this assists. Please do reply below if you have any further questions or would like any aspect of my response clarified. If my comments are of assistance, I would be grateful if you would confirm by accepting and rating this response. This can be done by selecting one of the five stars located on the top right of the question page and enables me to gain credit for the time taken in responding to your query. Please note that rating the response will not close this question - you will still be able to post below with any further queries or comments.

Kind regards

Lisa

Lisa Lawyer and 2 other Law Specialists are ready to help you
Customer: replied 3 years ago.
I'm sorry you havent answered my question as I would have hoped When I wrote his will for him i named a beneficiary who had passed away ten years but he didn't know because he was a his late wife's nephew my sister in law said he would have known.Also he made another error he said also one of late wifes nieces was a great niece and not a niece.again he hadn't seen for over thirty years so it was a mistake I don't think this makes not sound of mind which is what she is saying.His two witnesses were present when I wrote his will and they witnessed him signing his will and they witnessed him signing his will as well.She is considering taking it to court has she got a case of is just wasting her time and money.Will i have to get medical records to confirm he was sound of mind and he knew what he was signing.My sister in law is saying she doesn't believe he knew what he was signing

Thank you for your additional comments and information. Your original question was how long your sister in law has to challenge the will, and I believe I answered that question.

I understand that you have additional queries, however, and will do my best to assist.

It seems that your sister in law is intending to challenge the will on the grounds that she believes your father lacked the required level of capacity.

Testamentary capacity is normally presumed unless evidence is put forward to cast doubt on this. Where your sister in law is able to present such evidence, the burden of proof would then shifts onto you to prove your father did have sufficient capacity. There is plenty of case law to evidence the fact that succeeding in a capacity challenge is not easy, principally because gathering evidence of lack of capacity can be quite difficult 'after the event'.

It may be helpful to understand the legal test to establish testamentary capacity. In short, in order to make a valid Will, a person must:

  1. Understand that they are making a Will;
  2. Understand the extent of their estate and what their assets are;
  3. Understand the claims which may be made against their estate; and
  4. Not be suffering from a mental disorder which affects their capacity.

Where a challenge is brought, medical expert evidence on that point will always be sought. The expert will prepare the report based on a review of the patient's medical records, but since this is all dealt with retrospectively, evidence of friends and family, the witnesses to the Will and the Will drafter will often be extremely relevant.

Should your sister in law bring a claim that you wish to defend, I would strongly recommend that you instruct a local solicitor to represent you in such an action. They will be able to talk you through your specific circumstances, and the best way of collating and presenting the necessary evidence to the court.

I hope that is helpful.