Unravelling the ties that bind: Exploring legally challenging a Will and who can claim against a Will

If you believe that a loved one’s Will is not valid for some reason, you may be entitled to raise a legal challenge. You may be shocked to find you have not been included in a persons Will, when you expected to inherit from them. We look at challenging the validity of a will, claiming against a Will and what is involved.

Grounds for challenging the validity of a Will

There are a number of reasons why a Will may not be valid:

• It was not properly executed
• The person making the Will did not have adequate understanding of what they were signing. They may have lost capacity if they were suffering from dementia
• They did not approve the Will or have knowledge of its contents
• They were unduly influenced into signing
• The Will was a forgery or a fraud
• The Will was revoked, for example, by marriage or the making of a subsequent Will

It may also be possible to challenge a Will if you believe that it contains an error. Or in the case where you have not been included in the Will but you depended on the deceased financially. Therefore believing that you should have been provided for.

Who is entitled to challenge a Will?

If a loved one has died and you have discovered you are not due to receive anything under the terms of their Will or, if they did not leave a Will, under the Rules of Intestacy, you may be in financial difficulty.

The Inheritance (Provision for Family and Dependants Act 1975 (the Act) allows certain individuals to make a legal claim against someone’s estate. This is in the case that they have not been sufficiently provided for.

You will generally need to have an interest in the contents of a Will to be able to challenge it. You may be the deceased’s spouse, close family member or cohabiting partner. Alternatively you may be someone who is mentioned in the Will or in a previous Will.

Increase in claims

There has been a steady increase in claims being brought under the Act. Potentially due to more complex family situations as well as errors made by individuals who have drafted their own Wills.

If you have a blended family or you have remarried, it is particularly important to make sure you have the right Will in place. Similarly, if you are cohabiting, you must have a Will if you want to ensure that your partner inherits. Without a Will they will receive nothing from your estate.

Inheritance (Provision for Family and Dependants) Act 1975 claims

A spouse, child or cohabiting partner of the deceased or a financial dependent can make a claim under the Act. As a result of them not being left anything under the terms of the deceased’s Will. Those who can claim under the Inheritance Act 1975 are:

• A spouse or civil partner
• A former spouse or civil partner, provided that they have not married or entered into a civil partnership
• A child of the deceased, including an adopted child
• Anyone the deceased treated as their child, for example, a step-child
• A cohabiting partner who had lived with the deceased for at least two years before their death
• Anyone being financially supported by the deceased

How much can you claim under the Inheritance Act?

The Act allows most individuals to claim ‘reasonable financial provision’. In deciding how much to award someone, the court will take the following into account:

• The size of the deceased’s estate
• The applicant’s likely financial needs for the future, taking into consideration their earning capacity and other resources
• The needs of any other applicants
• The needs of the beneficiaries of the Will who might be affected by an award being made to the applicant
• The obligations of the deceased to all other parties
• The physical and mental health of applicants and beneficiaries
• Any other matters that the court believes are relevant

In respect of a spouse or civil partner, they could receive more than just reasonable financial provision. The court may decide to make an award that is similar to the amount that a spouse would receive on divorce.

What will the court order?

The court has a range of options open to it in deciding how to provide for a claimant, including:

• A lump sum
• Regular income
• Transferring property to the claimant
• Putting assets into a trust for the claimant
• Purchasing a property for use by the claimant
• Varying a pre-nuptial or post-nuptial settlement made by the deceased

Is there a deadline for making an Inheritance Act claim?

There is a strict time limit of six months from the date of the Grant of Probate or Grant of Letters of Administration, in which claiming against a deceased estate is allowed. Occasionally the court may allow a claim out of time. However, where possible, you should make sure that you meet the deadline.

If you believe that you may have a valid claim, you are strongly advised to speak to a solicitor as soon as possible.

Approaching the Probate Registry

If you have a valid claim, you can send a caveat to the Probate Registry. This means that they will not issue a Grant of Probate in respect of the Will for six months. The caveat can be renewed after this time if necessary.

During this time, you can try to negotiate a solution with the executors. However, you need to be aware that they are required to act in the best interests of the beneficiaries at all times.

Where a settlement cannot be reached, you may need to make a claim to the court.

Making a court claim

A court claim challenging the validity of a Will is generally a last resort and can be a complex and lengthy process. For example, it may be difficult to prove one way or the other whether someone with dementia still had sufficient understanding, or testamentary capacity, to make a Will. Even if their mental faculties have declined, they may still be capable of making a valid Will. Evidence would be needed proving the contrary in order to bring a successful challenge.

An experienced contentious probate solicitor will be able to advise you honestly about your chances of success. They will be able to talk through any other possible options with you.

Financing a claim

It may be possible to enter into a no win, no fee agreement. The court may in some circumstances, where no other funding was available, order that the cost of this is paid from the estate on conclusion of a successful claim.

Contact us

If you would like to speak to one of our experts call us FREE on 0800 781 6658 or email us at enquiries@estplan.co.uk

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