Challenges to a Will
It is a misconception that a person’s “last Will and testament” is a document which finally sets out what happens to their assets after they have died.
In fact there are many grounds to challenge a Will, and such challenges are becoming increasingly common.
Such cases have all the ingredients of a classic novel – money, family feuds, mistresses, sibling rivalry and dark family secrets!
The recent rise in the number of claims has resulted from the greater number of extended families, second marriages, co-habitation and rising asset values.
Such claims are often bitterly fought and heavily charged with emotion.
There are a number of ways to challenge a will.
The most common is under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) by which a close relative can claim that the terms of the Will did not make reasonable financial provision for them.
The factors the Courts take into account are varied but the test for a surviving spouse is whether the Will made reasonable provision for them bearing in mind things like length of the relationship, age of the survivor and any disability.
Children also have a strong claim for maintenance from the estate of their deceased parent, but in the case of adult children there is no presumption that they are entitled to inherit and are expected to make their own way in the world, although recently the Courts have adopted a more generous approach.
Another way to challenge a Will is to argue that the testator lacked capacity. In an age when people are living longer and making Wills in their 70s and 80s it is increasingly common to see claims of this type .
The burden of proving lack of capacity is on the person challenging the Will, and it is not an easy burden to discharge if the Will has been witnessed by a medical professional. Nonetheless a challenge can be explored particularly where the terms of the Will are dramatically different from those of previous Wills or appear irrational or out of character.
Claims challenging a Will on the basis that the testator was subject to undue influence are sometimes favoured by disappointed beneficiaries when they feel that the estate should not have gone to the “wicked stepmother” but in practice it is often difficult to prove that the degree of influence was sufficient to override the testator’s free will. But each case can be looked at on its merits.
It is not just disappointed beneficiaries who need to be aware of how Wills can be overturned. Executors, trustees and Charities need to consider whether the claim should be opposed or not because adopting the wrong stance can make them personally liable for costs.
The whole area is a fascinating one but is fraught with complexity and emotion. If you think you have a claim it is vital to act quickly to avoid the estate being distributed and to speak to an expert in this area of law.
Paul Keeling, Stones Solicitors LLP Head of Litigation and Dispute Resolution 01392 666777 www.stones-solicitors.co.uk paulkeeling@stones-solicitors.co.uk