A will is intended to show the last wishes of a person who has died and to have been written in order to show what he or she wanted to be done with their property and possessions. Sometimes, however, the reliability of the will and the deceased’s wishes are questionable, and for this reason the law offers recourse by means of allowing a challenge by way of contesting the will. Alternatively, the will or intestacy provisions may not have made proper financial provision for a relative or dependent, and the law allows a court to vary the will to this effect.
There are 3 main basis on which a will may be challenged. Strict time limits apply to avoid delay in administering the estate and possible unfairness to other beneficiaries. So, it is important to act swiftly. Remember also that the debts of the estate must usually be paid notwithstanding any challenge.
Before considering the grounds for challenging a will, you should ensure that it was properly executed. A will is invalid unless it complies with the requirements of the Wills Act 1837. If a person dies leaving an invalid will, his estate passes as on intestacy.
Even where a will has been properly executed, it will be invalid if it can be shown that the maker lacked testamentary capacity or was subjected to undue influence when making the will. Testamentary capacity requires the testator to understand the nature of the act of making a will and its effect, including the extent of his property and claims there may be upon it. A will signed therefore by a person who is not in a fit mental state to appreciate the nature and extent of what they own, or those whom they should consider benefiting, is not effective and can be challenged.
Suspicious circumstances are unlikely to be sufficient in themselves to have a will declared invalid. If undue influence is alleged, it will be necessary to show strong evidence that actual coercion took place. The coercion might take many different forms and can include physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that that person may be induced, for quietness sake, to do anything.
Where it can be shown that a person has died without making proper provision for their relatives or dependents, the courts have a wide discretion under the Inheritance (Provision for Family and Dependents) Act 1975 to redistribute assets to produce a fair result. Claims can be brought whether or not there is a will.
Those that can claim are a surviving spouse, a cohabitee who lived with the deceased for at least two years, children, legitimate illegitimate or adopted and any other child, such as a step-child, supported by the deceased and treated as her or his own. Claims can also be made by someone supported by the deceased such as an elderly relative, or anyone receiving regular maintenance from the deceased.
A claim must be brought within 6 months from the date of the grant of probate. Failure to do so may prevent you from bringing such a claim. If you are out of time, leave must first be obtained from the court.
The crucial question will always be whether or not the will made reasonable financial provision for the claimant in all the circumstances. The burden will be on the claimant to make out their case and show that reasonable financial provision was not made from the estate.
The calculation of the valuation of any claim can be complex and includes a variety of circumstances, including the needs of the claimant, the needs of other beneficiaries and the size and nature of the estate.