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When can you challenge a will?

Our People - GN
Mary Nwabuzor
17 February, 2021

There are certain categories of people who can bring a claim to request reasonable financial provision if they were not provided for under a deceased person’s Will or under the intestacy rules.

The Basics

Under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act), the court has the power to vary the distribution of the estate of a deceased person. You can bring a claim is you expected to secure some element of financial provision in the will/intestacy but didn’t. This Act also covers varying the intestacy rules which determine how an estate is divided in the absence of a will.

Who can claim?

The people entitled to make a claim under the Act are those who either are:

  • A spouse or civil partner of the deceased;
  • A former spouse or former civil partner of the deceased;
  • A child of the deceased;
  • A child who was treated by the deceased as a child of the family;
  • Someone financially dependent on the deceased immediately before the deceased’s death.

What are my chances?

Each case is fact sensitive and turns on its individual merits. Section 3 of the Act lists the factors which the court must have regard to when determining whether a deceased’s Will or the law of intestacy makes reasonable financial provision for the applicant, and if not, what provision to make.

These factors under Section 3 of the Inheritance Act 1975 are:

(a)  the financial resources and financial needs which the applicant has or is likely to have in   the foreseeable future;

(b)  the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;

(c)  the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)  any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;

(e)  the size and nature of the net estate of the deceased;

(f)  any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;

(g)  any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

In addition, the court will also have regard to:

  • whether the deceased maintained the applicant and, if so, to the length of time for which and basis on which the deceased did so, and to the extent of the contribution made by way of maintenance;
  • whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant;
  • whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not his own child;
  • the liability of any other person to maintain the applicant.

It’s important to note that a spouse or civil partner is entitled to reasonable financial provision in all the circumstance of the estate, all the other categories including cohabitees are only entitled to what is reasonable for his or her maintenance.

Applications under the Act should be brought within 6 months of the Grant of Probate been issued.

If you think you fall under this category of person or know someone who does that can bring an action under the Act, you should seek legal advice on the merits of any such claim.  

It is also important when drafting your Will, that you are advised as to the how to mitigate against these sorts of claims being made against your estate after your death.  

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