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When can you challenge a will?

Our People - Andrew Guile
28 September, 2022

The most common grounds upon which you can challenge a will if you think it was not the deceased person’s last will, if you think it’s invalid for some reason (e.g. it was written under undue influence or it was written at a time when the deceased did not have the mental capacity to make it) and/or if you fall within certain categories of people who can bring a claim for ‘reasonable financial provision’ if you were not provided for in the will or under the intestacy rules.

What are the grounds for contesting a will?

There are a number of grounds on which you may contest a will. The grounds for contesting a will include:

  • It was not the deceased person’s last will
  • The will was written under undue influence or coercion
  • The will was not properly executed
  • The deceased did not have the mental capacity to make the will in question
  • Bringing a claim for reasonable financial provision under the Inheritance (Provision for family and dependents) Act 1975
  • The will is a forgery or fraudulent

What if the deceased made a later will?

Most wills, when drafted, all say that they revoke any earlier wills. If you think a person’s estate is being administered in accordance with a will that was NOT the person’s LAST will and testament, then you need to raise this with the executors and locate the later will urgently. You will also need to take some legal advice, as steps might need to be taken to prevent the executors being granted probate.

What do you do if you think the will is invalid?

If you think a will is invalid because the deceased made the will under undue influence (for instance to exclude you, or someone else, from the will or to change the way in which the estate is shared) OR if you think that the deceased did not have the mental capacity to make the will in question, then you will need to take legal advice on how to proceed.

This may involve contacting the executors seeking to prove the will in question (or their legal representatives) and raising your concerns about the will’s validity. If proved to be or agreed to be invalid, any valid prior will may then be the will that needs to be followed or the invalidity of the will may result in an intestacy. There are specific rules about how an estate is distributed where there is no will, i.e. where the deceased is deemed to have died ‘intestate’.

Inheritance Act Claims

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 bring an Inheritance Act 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.

How easy is it to win an Inheritance Act claim?

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 being 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. If you would like any help or advice on contesting or challenging a will, please do not hesitate to contact a member of our Wills and Probate Team or get in touch on 020 8492 2290.

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