How does Someone Contest a Will?

Disputes regarding Wills are becoming increasingly common due to the value of the estates involved, so how do you contest a will? Well, continued increases in property prices have also contributed to this problem, in this post we give some ideas as to how someone could contest a will.

There are various reasons for someone not being provided for in a Will. These can include estrangement or simply the fact that a potential beneficiary is already wealthy, and the deceased believed such a beneficiary would not need an inheritance from them.

Regardless of the reason, being excluded from a Will can not only cause problems within a family but can also trigger contentious inheritance disputes.

There are several different approaches to contesting a Will, as follows:

1. The Will Failed to Make Reasonable Provision

Who Can Challenge a Will for lack of Reasonable Provision?

Certain relatives and financial dependents can claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that the distribution of the estate does not make reasonable financial provision for them.

The classes of those who can make a claim are:

• A spouse or civil partner; or
• A former spouse or civil partner – they must not have remarried or registered a new civil partnership since the divorce or termination of Civil Partnership; or
• A person who cohabited with the deceased as husband and wife for 2 years or more prior to the deceased’s date of death; or
• A child of the deceased; or
• A person treated as a child of the family (e.g., stepchild); or
• A financial dependant.

What are the Grounds?

Either:

The beneficiary or applicant can demonstrate that they were financially dependent upon the deceased and an insufficient share of the estate or monies was provided for them; or

The beneficiary falls into one of the categories of family members and “reasonable provision” has not been made for them.

In either case, they can then bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  An example of this might be a deceased person who makes no provision in their Will for a financially dependant child.

2. The Will is Invalid for Some Reason

The second category of challenges are claims that the Will is invalid for one of the following reasons.

The requirements for a valid will are:

• It must be in writing; and
• It must be signed by the deceased, or signed on their behalf; and
• The deceased must have signed or acknowledged their signature in the presence of 2 witnesses; and
• The witnesses must have signed or acknowledged their signatures in the presence of the deceased.

If these requirements are not met, then the Will is NOT valid and will fail.

3. The Testator Lacked Mental Capacity at the Time of Arranging their Will

The deceased must have had mental capacity at the time of creating their Will. They must also have known and approved the contents of their Will. The test to demonstrate that the deceased maintained the mental capacity to create their Will must demonstrate that they:

• Understood the nature of making a Will and its effect; and
• Understood the extent of their property and assets; and
• Understood and appreciated the moral claims they ought to give effect to i.e., for whom they might reasonably be expected to provide; and
• Were not suffering from any disorder of the mind that “poisoned their affections” and interfered with how they distributed their estate.

4. The Testator was Unduly Influenced

Undue influence is defined as “influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.”

Effectively, this involves pressure having been applied upon the deceased to make them do something by using force or threats which took away their ability to make decisions of their own free will.

Due to its nature, undue influence normally happens behind closed doors and ordinarily by people who are in a position of trust, e.g., a child, spouse, or solicitor of the deceased.

As it can be very discrete, a claim of this sort can be very difficult to prove as a court will need to rely upon the evidence presented to it. Therefore, the only way it would be possible to demonstrate any undue influence is by the claimant evidencing that there is “no other reasonable explanation” for the Will being arranged as it was.

What Happens when you Contest a Will?

The Court will consider the following guidelines when assessing a claim brought for lack of reasonable provision:

• The financial needs and resources of the beneficiaries and applicants (if they are not a beneficiary); and
• Any obligations and responsibilities the deceased had towards any beneficiary or applicant; and
• The size and nature of the estate; and
• Any mental or physical disability of the beneficiary or applicant.

When considering claims brought by a spouse or civil partner, a court will consider the age of the applicant and duration of the marriage or civil partnership.

The test when considering the standard of provision is “such provision as would be reasonable in all the circumstances to maintain the applicant.”

If the applicant is successful, then the Court will decide what award should be made. The Will remains valid, but the way assets are distributed will be varied by the Court to make provision for the applicant. This varies in each case as an appropriate award will depend upon the circumstances of the applicant, the size of the deceased’s estate, and what assets are available.

For claims that a Will is invalid, the outcome is very different. If the claimant is successful in bringing their claim and the deceased had made an earlier Will, then the estate will simply be distributed in accordance with that earlier Will. However, if the testator had not made an earlier Will, then their estate would pass in accordance with the laws of intestacy instead.

Is there a Time Limit for Contesting a Will?

Yes, but again this varies. A reasonable provision claim must be brought within 6 months of Grant of Probate. It is therefore advisable for Executors not to distribute the estate for at least 6 months from the Grant of Probate, or even wait another 4 months thereafter as the applicant(s) have 4 months from the issue of proceedings to serve them on the other side. If an Executor waits before distributing the estate, then they are protected from any liability under the 1975 Act.

For claims that the Will is invalid there is no time limit.

What Happens if an Executor or Trustee Contests the Will?

If an Executor or Trustee contests a Will for any reason, then they simply need to renounce their position as Executor and/or Trustee because there would otherwise be a conflict of interest if they continued to act. This is one of the reasons why It is always advisable to appoint substitute Executors and Trustees in your Will.

For further information and guidance, please get in touch without fear of consultation fees or obligation.