Is the Will valid?

The recent publicity surrounding the death of blues musician BB King and the validity of his Will, highlights a growing trend for contested probate on both sides of the Atlantic. In BB King’s case, following his death in Las Vegas on 14 May 2015 his family has raised concerns of undue influence by his business manager and personal assistant. It is suggested that in the week before his death, King was isolated from all family members and only his manager and assistant were with him. Two of the family go even further to say the musician was given “foreign substances to induce his premature death”.

The growing number of contested probate matters making the headlines and reaching the courts is thought to be linked in many cases to more complicated family structures, the changing family dynamic – increase in remarriages, step families and cohabitation. The rise is also attributed to the increase in DIY Wills and DIY probate, and family and friends taking on the role of executor and in some cases encountering disputes.

With the allegations of poisoning the BB King headlines have also included reference to the ‘Slayer Rules’ prohibiting a party who is convicted of the crime of murdering the testator from inheriting via his Will.

A challenge to the validity of a Will or who should benefit from an estate can be based on various grounds. Not many cases involve evidence of a ‘smoking gun’ or poison but instead are more likely to result from a lack of proper formalities, lack of testamentary capacity, lack of knowledge and approval, undue influence and fraud or claims brought under the Inheritance (Provision for Family and Dependants) Act 1975.

If you have concerns about the validity of a Will, it is important to act quickly and if appropriate lodge a caveat. Once it is lodged, it provides an important tactical advantage as no grant of probate can be issued until the caveat is removed. If a caveat is not entered and a grant is issued, it would be necessary to obtain an order for revocation of the grant. This can be costly and assets may have already been distributed.