East London Solicitors

EAST LONDON FAMILY LAW FREE GUIDE

What are common and/or legal reasons for contesting a will ?

• belief that the will was signed only due to undue pressure.
• evidence that the will doesn’t reflect the known wishes of the deceased because it was drafted negligently.
• that the deceased did not have the required mental capacity to make the will e.g. the person was suffering from dementia or a similar mental illness when the will was made
• the will is not legally valid, due to formalities and technicalities such as it has not been signed and/or witnessed properly, which is a common problem with homemade wills

The Inheritance (Provision for family and Dependants) Act

This is an important Act which applies either where a valid Will has been made but does not provide for dependents, or where no Will exists and the intestacy rules apply. This Act allows an application to be made to the courts to redistribute the deceased’s estate where the Will or intestacy rules fail to make “reasonable financial provision” for a dependent, usually a close relative who will; need to be able to show that they have a genuine financial need and that they have a sufficiently close relationship with the deceased such that the court should interfere with a will or the intestacy rules.

.Who is a dependent ?

The definition is fairly wide and can include :-

• surviving husband or wife
• cohabitees
• children
• a person who can show they were being financially maintained by the deceased
• civil partners

What is “reasonable financial provision” ?

This is the legal term used in the Act and the definition varies from case to case.  Cases involving surviving spouses who have been excluded in a will are treated differently from those by brought by other categories of claimant.

If the Inheritance Act claim is made by the spouse of the deceased then reasonable financial provision will be such financial provision as would be reasonable for a husband or wife to receive, whether or not that provision is required for their maintenance. In other words, they do not need to prove financial need.

However, for any others making an Inheritance Act claim, reasonable financial provision means only such financial provision as is necessary for maintenance, so it is based on proving need.

What is Parental Responsibility ?

Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

Parental Responsibility finishes automatically when a child reaches 18.

All mothers automatically have Parental Responsibility and a married father also obtains parental responsibility automatically whether he was married to the mother at the time the child was born.

How to get Parental Responsibility if it is not automatic

From 1st December 2003 unmarried fathers of children born after this date also get parental responsibility automatically but only if they are named on the birth certificate of the child..

If you are an unmarried father of a child born before 1st December 2003, or are the father of a child born after 1^st December 2003 but are not named on the birth certificate or are a step fathers and mothers, what can you do  ?

If you are a father without Parental Responsibility and want to obtain it you can :-

• marrying the child’s mother
• seek the mother’s agreement by way of voluntary Parental Responsibility Agreement
• seek a Parental Responsibility order at court

Step parents ?

Since 5th December 2005, step-parents have been able to acquire parental responsibility through a formal agreement with all other adults who already have parental responsibility for that child or by court order, with a similar process being considered by the courts as for unmarried fathers.

Return to the main East London family lawyers page or visit the family law blog.