Contesting a will

Wilson Browne

1st June 2018

Legal Briefing

Wilson Browne

By Jennifer Laskey

Wilson Browne Solicitors

CHALLENGES to wills are on the rise. The reasons for this are myriad - including an increase in second (and sometimes third or fourth) marriages, a rise in people trying to write their own wills, more and more of us living longer though not necessarily in good mental health and a continued trend for house prices to rise whilst wages fail to keep pace with inflation. Estates may also be worth more than they were previously as the value of bricks and mortar assets becomes increasingly significant.

The importance of a professionally made will has never been more obvious but even in the most carefully considered circumstances, there may still be family members who are disgruntled at being 'left out'.

Where a will has been made a long time ago and not updated or where one has been made more recently but without the right formalities it may be open to challenge and may in fact be invalid.

Challenges to wills fall into two broad categories - challenges to the will itself and challenges to what the Will says on the basis it fails to provide for people who were dependant upon the deceased.

Challenging a will

If there is concern about whether or not a will is invalid it will be necessary to bring a claim under certain general headings:

* Lack of testamentary capacity

* Lack of knowledge and approval

* Undue influence

* A fraudulent or forged Will

* Lack of valid execution of the Will or because the will needs to be rectified or there is a dispute about the way in which the Will should be construed.

Many of these need expert input e.g. in the case of forgery it is often the case that a handwriting expert may be called in to assist the parties or the court. If you do not think a will is valid and want advice on contesting a will or someone is disputing or contesting a will or making a claim against a will or estate and you need to defend the claim, then seek professional advice.

Failure to provide

In some circumstances, when someone dies their will (or lack of a will) results in a failure to make reasonable provision for those left behind who were financially dependent upon them before they died. In those cases it can often be possible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

The Act does not allow everyone who thinks they should have been mentioned in a will to bring a claim - only certain classes of dependents can claim which includes: a spouse or civil partner; a former spouse or civil partner; someone who has cohabited with the deceased for at least two years prior to death; children of the deceased and those treated as children of the deceased by them; anyone else who was maintained by the deceased immediately before they died.

Courts will not easily change the provisions of a will but where it is agreed or decided that a will (or intestacy) does not make reasonable financial provision for the applicant the Act allows an adjustment to be made. In many cases, it will be clear that reasonable financial provision has not been made and it can be possible to negotiate an agreed adjustment to the will or intestacy so that court proceedings can be avoided.

A provision that will be made for someone who was dependant and who brings a claim under the 1975 Act, is that which is 'reasonable' which will vary by circumstance.

Act quickly - If you think you might have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 you should act quickly. A strict six-month time limit applies from the date a Grant of Probate or Grant of Letters of Administration is issued by the Probate Registry. Only in extreme circumstances can that time limit be exceeded.

Call Wilson Browne on 0800 088 6004 for more information - an initial call costs nothing.

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