Contesting a will
When someone dies, the administration of the estate will be dealt with, and the net estate distributed according to the terms of the deceased’s Will (or under the intestacy rules if there is no valid Will). In recent years, there has been an increasing number of Wills disputes, with the courts having to rule in many cases.
Some disputes involve, for instance, potential beneficiaries who have been unfairly excluded from the Will; whilst other cases arise where a Will has been found to be invalid for some reason. Whatever the issue, there is a tight time limit within which a claim must be made: claims must be made within 6 months of the date the Grant of Probate is obtained.
Who can contest a Will?
Anyone who has a beneficial interest, or potential beneficial interest in the deceased’s estate, can contest a Will if they believe they have a valid claim. Typically, those who contest a Will are the surviving spouse, children, cohabitee and other dependents, such as adult children who were being financial supported by the deceased, and children who are treated as a child of the family.
What should an individual do if they believe they have a claim?
If someone believes the Will is invalid, or believes they have a valid claim against the estate, should seek legal advice as soon as possible. One of the first steps that can be taken to protect their interests is to apply for a ‘caveat’ which prevents the assets of the estate being distributed pending the outcome of the dispute.
How long will this caveat last?
The caveat will last for six months, although it can be renewed. Often, the dispute will be resolved before it reaches court.
What happens if an agreement cannot be reached during the caveat stage?
If an agreement cannot be reached during the caveat stage, and the dispute cannot be resolved, a formal claim may be made to court. Claims against an estate involving a Will typically fall into two categories:
- The Will is invalid
- The Will did not make sufficient (or any) provision for the claimant
A claim that the Will is invalid
A Will must fulfil certain legal and procedural requirements in order to be legally valid. A Will may, therefore, be invalid for a number of reasons including:
- It was not property executed: a Will must comply with strict legal requirements under the Wills Act 1837. It must, for instance, be in writing and signed by the testator in the presence of two independent witnesses (neither of whom should be a beneficiary, or married to a beneficiary of the Will).
- There is evidence of fraud or duress: if the testator was forced to make the Will, or it was fraudulent, the Will is invalid.
- Lack of testamentary capacity: the testator must have been mentally capable of making a Will, including understanding the implications of its contents. He or she must have been of sound mind.
It is for the claimant to prove that the Will is not valid. Strong evidence must be produced to convince the court, on the balance of probabilities, that the Will is invalid. However, note that in the case of a claim based on lack of testamentary capacity – where the claimant has successfully raised a real suspicion that the deceased lacked capacity, it is then for the executors to establish that the deceased did have mental capacity.
If the court decides, on the facts and the evidence, that the Will is invalid, the estate will be administered according to the rules of intestacy – as though the Will never existed.
Where a dependant has not been sufficiently provided for under the terms of the Will, a claim for reasonable financial provision can be made under the Inheritance (Provision for Family and Dependants) Act 1975. A dependent for these purposes is anyone who the deceased was financially maintaining (or had a legal obligation to do so) at the time of death. Usually, dependents are surviving spouses, cohabitees, children or individuals treated as a close family member such as a disabled friend.
How will the court assess a dependency claim?
The court will consider various factors including their age and any responsibility for young children; the length and nature of the relationship between the claimant and the deceased; their contribution to the family; and what they would have received had they divorced instead of the death occurring. If the court decides reasonable provision was not made, it will then consider what is reasonable provision.
In the case of a successful claim, the court will order what it decides is reasonable provision out of the estate. This will be awarded by way of a lump sum or maintenance payments, depending on the claimant’s needs, and size of the estate and other relevant factors.
In recent times, the courts have shown a greater willingness to allow claims, even in cases where the claimant was not being financially support by the deceased at the date of death. For this reason, it is critical to take legal advice if you consider you have even a small chance of making a successful claim against an estate.
Are there any other grounds on which a Will can be disputed?
There are a number of other scenarios where a Will can be disputed, including:
- The original Will may be lost and the executor may apply to court to prove there is a Will, and obtain a Grant of Probate accordingly
- A property may be disposed of under the terms of a Will, however, a dispute may arise where someone other than the deceased claims that the property was owned, or part owned by them
- Errors in a Will unfortunately crop up from time to time. These could be drafting errors (where a clause is incorrectly written); or administrative (eg. where the wrong Will is signed). Such cases can be difficult to resolve without the court being asked to rule on whether or not a clause or the Will itself is valid