How Does Contesting a Will Work?
There are some common reasons for contesting a Will and they include:
- You’ve been left out of a Will completely
- You’ve not been left as much as you thought you would be
- You were promised a gift of a property when the deceased was alive but they fail to honour that promise by leaving it to you when they die.
You do have options when contesting a Will in these circumstances.
If you were left out of a Will completely or are disappointed by the amount you are to receive, you could make a claim to have the Will set aside. Alternatively, you could make a claim to have financial provision made for you from the Estate. If you were promised a gift of a property when the person who died was alive, you can try to enforce that promise.
Contesting a Will is best dealt with by a specialist Contentious Probate Solicitor.
Contesting the Will’s Validity
When deciding if you should contest a Will, you must consider if it will benefit you to do that. If you are successful in contesting a Will, the Estate will be distributed according to the previous Will, if there was one. If there was no previous valid Will, the Estate is distributed in line with inheritance laws (in England and Wales) called the Rules of Intestacy.
Grounds for Contesting a Will
If it would benefit you to challenge the Will you then need to decide if you have grounds to do so. A Will can be challenged on several grounds, but very often a claim involves an allegation the deceased did not have testamentary capacity (legal and mental ability) to make the Will. This issue has given rise to a growing number of challenges owing to an ageing population.
In order to prove a lack of mental capacity the following steps can be important to take:
- An investigation into the circumstances surrounding the preparation and execution of the Will. This is often done by obtaining evidence from the person who prepared the Will and those who witnessed the Will
- Taking statements from those who knew the deceased is often helpful in illustrating the deceased’s cognitive decline
- Obtaining and reviewing the deceased’s medical records will be invaluable together with evidence from deceased’s doctor and/or expert opinion evidence from an independent medical expert.
It’s important to note that if you’re not a beneficiary in a previous Will or you wouldn’t inherit under the Intestacy Rules, you shouldn’t challenge the validity of the Will.
You may have other options, such as making a claim for financial provision instead.
Making a Claim for Financial Provision
A claim for financial provision can be made by a number of different people. Usually these claims are made by the husband, wife or children of the person who died. But, unmarried partners and people who are not blood relatives can also make a claim for financial provisions. These people are:
- A civil partner
- A former husband or wife
- Anyone who lived with the deceased as if they were a husband, wife or civil partner for at least two years immediately before they died
- Anyone who is not a child of the person who died, but because of a marriage or civil partnership was treated as a child of theirs
- Anyone who, immediately before the deceased passed away, was being maintained, partly or wholly, by the person who died.
If any of these circumstances match yours, you may have a claim for financial provision.
To make a claim for financial provision, you will have to prove to the Court that reasonable financial provision has not been made for you and that the Court should intervene to make sure that you do have it. If the Court agrees, it will then decide what financial provision you should get.
The Court has a wide discretion to make financial provision including lump sum awards, regular payments known as periodical payments and the transfer of property.
The time limit to contest a Will is short. You must bring a claim within six months of a Grant of Representation being issued. Even though the Court can allow claims outside of this time limit, they rarely give permission.
Promises Made Before Dying
If the person who died made a promise to you before they died that they will give you an interest in property, this can be enforceable even if that promise is not reflected in their Will.
For a property claim to be successful, you’ll need to prove four things:
- That the person who died made you a promise to give you an interest in a specific property
- That you relied on their promise
- That you suffered loss, known as detriment, because you relied on the promise
- That it’s unfair that the Estate will not honour the promise made by the person who died made when they were alive
Examples of loss (detriment) which have been accepted by the Courts include:
- Giving up work and moving to another town/city
- Working for a reduced wage in a family business, not taking up other business opportunities and not taking up an alternative and lucrative career
- Running errands, collecting prescriptions, providing basic nursing care and gardening
- Agreeing to go to college and learning necessary skills
- Moving and making improvements to a property
There is no doubt that Will disputes are unpleasant and upsetting, but sadly they are common. These types of disputes are complex and often involve close family relationships so it’s important that a specialist Contentious Probate Solicitor manages them, so they are handled sensitively, and that they try to reach the best possible outcome for everyone involved.
For free legal advice call our Contentious Probate Solicitors
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