A person's estate is distributed upon their death according to their Will (or under intestacy rules where there is no valid Will). However, disputes over Wills have become increasingly common in recent years, partly due to the fact that assets (especially property) have increased significantly in value and also because family arrangements are now more complicated. The law relating to contested Wills is fairly complex, which can make a challenging time even more difficult. Here we look at when a Will can be contested and how to handle the situation.
Can Anyone Contest a Will?
Wills are automatically revoked by marriage or civil partnership. A Will is also revoked where another Will or codicil is made, if the testator puts in writing that they want to revoke the Will and this is correctly executed or where the testator in some way destroys the Will to revoke it.
The most common group to contest a Will are family members. There is a defined group of people that can contest a Will and it is anyone that has a beneficial (or potential beneficial) interest in the estate, which generally includes:
- Spouse or civil partner
- A former spouse or civil partner that has not remarried or registered a new civil partnership
- Cohabitee (living as married) for at least two years before the death of the deceased
- Children including those treated as a child of the family
- Financial dependents of the deceased, including adult children. This can also include people who were provided with accommodation or financial assistance from the deceased.
Any beneficiary (not limited to relatives) can contest a Will where they have not received their inheritance and where the Will is not being correctly executed in the best interests of the beneficiaries.
If there is the possibility of a Will being disputed, then specialist legal advice should be taken as soon as possible. Someone that raises a potential claim can apply to the Courts for a "caveat" that protects the assets of the estate from being distributed while there is a dispute. The caveat lasts for six months but can be renewed. Where the claim cannot be resolved during the caveat stage, then the matter can be referred to the Court stating that either the Will is invalid or did not sufficiently provide for the claimant's needs.
What Reasons Are There to Contest a Will?
For a Will to be valid, various procedural and legal requirements must be met. If these conditions are not satisfied, then the Will could be deemed invalid. These issues include:
- The Will not being executed correctly. It needs to have been written and signed by the testator in front of two independent witnesses that are neither a beneficiary or spouse of a beneficiary).
- If there appears to be fraud or duress in relation to the testator making the Will, then it is invalid.
- If the testator lacked the necessary mental capacity to make the Will, then the Will could be found to be invalid. If this is successfully raised, then the executors have to prove that the testator did have the required mental capacity.
- Where there are suspicious circumstances surrounding the preparation of the Will (for example, the main beneficiary assisted in preparing the Will) then it may be argued that the testator lacked the necessary knowledge and approval. The higher the suspicion of the Court about this, the greater the burden of proof on the beneficiary relying on the Will.
Under these grounds, the burden of proof is on the defendant. There is a high burden of proof to show that the Will is invalid based on the balance of probabilities and evidence needs to be supplied to support this. Claims must be made within six months from the Grant of Probate.
It is also possible to contest a Will based on a claim that the deceased promised something to the claimant that they relied on to their detriment. Again, it is up to the claimant to prove this.
Another ground for contesting a Will is based on the reasonable financial provision for family and dependents under the Inheritance Act 1975. Here a dependent can make a claim where the Will does not sufficiently provide for them. The Court will examine various factors, including:
- The length and nature of the relationship, age of the applicant and contribution to the family where the applicant is a spouse.
- The age of any children, as well as any other obligations or responsibilities that the deceased had towards an applicant or beneficiary.
- The provisions that would have been made to the person if there had been a divorce rather than death.
- The financial needs and resources of the beneficiaries and applicants.
- The size and characteristics of the estate.
- Whether there are any disabilities relating to the applicant or beneficiaries.
A successful claim under these grounds will result in the Court awarding a lump sum or maintenance payments out of the estate. The Courts are showing a greater willingness to allow these claims and so it is imperative that advice is sought where this is a possible issue.
Contact Our Wills and Probate Solicitors, London
Contesting a Will can be difficult, it can also be difficult to have a Will upheld when you stand to benefit. However, we can help you through this challenging time and build your case. Our specialist Wills and Probate Solicitors have handled a great number of contested Wills cases in the past, and we fully understand the complexities of these kinds of cases. We pride ourselves on our exceptional customer service and want you to feel at ease with how your case is progressing. We fully understand how stressful it can be to lose a loved one and that Wills disputes can cause further discord in your family. That is why we aim to settle Wills disputes quickly and professionally.
The Wills and Probate Lawyers at Lewis Nedas offer a tailored, focused review of your family circumstances to determine how best to navigate individual relationships and appoint effective administration of your estate. For more information, please contact us on 020 7387 2032 or complete our online enquiry form.
