How can I challenge a Will?
27 October 2021
Some people are often shocked or surprised when they discover the contents of a loved one’s Will. It may be that they have concerns the person did not have capacity, they were unduly influenced or have concerns the Will is a forgery. You may also be surprised you received nothing, or not as much as you believed you would get or were told you would receive. When this happens, people often consider whether there is anything they can do.
Contesting a Will
One thing to consider is whether the Will is valid. There are various ways to challenge the validity of a Will:
- The Will does not comply with the correct formalities.
- The person making the Will did not have sufficient mental capacity.
- The person did not know and approve the contents of their Will.
- They were unduly influenced into making the Will.
- The Will is a forgery.
Before considering contesting a Will, you should see whether you are better off under the deceased’s previous Will. This is because the estate will be distributed in accordance with that Will, if the current one if deemed invalid.
Challenging the validity of a Will is not always easy and strong evidence is usually needed. This can be from the Will file (if the will was professionally drafted), medical notes, witness statements or other documentary evidence. Expert evidence may also be needed from a doctor on whether the deceased had mental capacity to make the Will, or from a forensic scientist if forgery is being alleged.
If you are concerned about the validity of a Will, you should act quickly to ensure the assets are not distributed. Although a claim can still be made if the assets have been distributed, there is then the added complexity of trying to get those assets back.
Claim under the Inheritance (Provision for Family and Dependants) Act 1975
Alternatively, if the will is not invalid, you may still be able to make a claim against an estate. One way to do this is under the Inheritance (Provision for Family and Dependants) Act 1975. This enables certain people to claim against an estate when they have not received reasonable financial provision. The people who can make a claim are:
- a spouse or civil partner
- an ex-spouse or civil partner who has not remarried
- the deceased’s cohabitant, providing they had lived together for at least 2 years
- a child of the deceased
- someone treated as a child of the deceased by virtue of a marriage
- someone maintained by the deceased.
For anyone but a spouse, the court will consider whether you receive enough financial provision for your maintenance i.e. to discharge your day-to-day living expenses. When considering this, the court will take into account:
- the finances of the person making the claim and the other beneficiaries
- any obligations and responsibilities the deceased had towards the person making the claim and the beneficiaries
- the size and nature of the estate
- any physical or mental disabilities anyone may have
- any other relevant matter, including conduct.
The court also considers other factors, depending on who is making the claim. For example, with a spouse, the court will consider the age of the spouse, the duration of the marriage and the contribution the spouse made to the welfare of the deceased’s family, such as caring for children and looking after the home.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 should be made within six months of the grant of probate. Once you start the claim, you then have four months to send the papers to the other side. Therefore, you may not know someone has made a claim against the estate until 10 months after the grant. If you wish to bring a claim after then, you can only do so with the court’s permission and there must be a good reason for the delay.
Another claim to consider is proprietary estoppel. This is when the deceased makes you a promise in respect of a property, which you rely on to your detriment, and the deceased then does not fulfil that promise.
For example, if the deceased asked you to give up your career to work on their farm for many years on minimal income, on the promise that you will one day inherit the farm, but then leaves the farm to someone else (or only partially to you) you may have a proprietary estoppel claim.
If you would like advice about challenging the validity of a Will, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or a proprietary estoppel claim, please contact our Contentious Trust and Probate Team who will be able to assist you. The team has vast experience dealing with different types of claims against an estate and will be able to advise you on the best option for you. The team also advises executors and beneficiaries who are defending claims made by someone.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.