WILLS

How do I contest a Will?

There are various grounds for contesting a Will.

A will can generally be contested for one of two reasons:-

INVALID – the will is for some reason deemed invalid; or
FAMILY PROVISION – whilst technically valid, it failed to make adequate provision for persons previously financially dependant on the deceased

The question then is who, how, and when can the will be contested?

What makes a Will invalid?

To be deemed valid a will must comply with the Wills Act 1837 . This sets out the requisite elements that the will must adhere to. And the grounds for contesting the validity of the will can include:-

CAPACITY – lack of testamentary capacity
EXECUTION – will not executed validly
KNOWLEDGE & APPROVAL – the testator (person who made the will) did not have knowledge or approval of the content
UNDUE INFLUENCE – the testator was placed under pressure
FRAUD or FORGERY – the will wasn’t made or executed by the testator at all

What happens if a Will is invalid?

If any of the reasons are established, then the will fails. And, either the last (previous) will made by the testator applies. Or, if there is no previous will, then the Rules of Intestacy apply.

What is Testamentary Capacity?

Testamentary capacity means that the person making the will (the testator) was of sound mind at the time they made/executed/signed the will. This is a question of fact. If it is decided that the deceased did not have sufficient mental capacity, the will fails.

What if the Will is not executed correctly?

This might be a simple administrative error (for example not being signed and witnessed properly). Nevertheless, again, if this is established, the will fails.

> How to sign a Will

What does Knowledge & Approval mean?

This might be for example where the testator has failed to read and understand the content of the will.

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Undue Influence

The rules for family provision aside, we are all free to leave our estates to whomever we please in our will. And the key there is ‘free to’. We must not be coerced by another to make provisions in our wills for someone we would not otherwise have done so for were it not for that undue influence.

Fraud or Forgery

Perhaps obviously, a forged will is one not made by the supposed testator and so therefore can not be deemed valid. This can give rise to criminal action too for anyone seeking to gain monetary advantage by fraudulent act.

Do I have to leave money to my Family in my Will?

No, but yes (in some circumstances). We are all free to leave our estate to whomever we please, and a valid will (ie one that isn’t deemed invalid for reasons set out above) will apply, ensuring those wishes are delivered by the executors of our will.

However, The Inheritance (Provision for Family and Dependants) Act 1975 makes provision for a family member to challenge a will if ‘reasonable financial provision’ has not been made for them, when they were previously financially dependent on the deceased during their lifetime. Two significant points here are: they must (a) be a family member; and (b) have a proven financial reliance on the deceased.

Who can make a Family Provisions claim?

Only certain people can bring a claim under this law, and whoever does must prove that they were financially maintained wholly or in part by the deceased. The list of people who can bring a claim includes:-

Spouse or civil partner
Former spouse or civil partner (as long as they have not remarried)
Cohabitee (for at least 2 years before death)
Child (natural or legally adopted)
Child (treated like)

Failing to make provision for dependent family members may give grounds for a claim.

What is ‘Reasonable Financial Provision’?

Courts are not interested in claims being made by disgruntled family members who would have liked a bigger slice of the estate! Moreover, your relationship with the deceased, and other factors will have a bearing on the Court’s view. The Court will bear in mind things such as:-

Your financial situation (now and in the future)
The obligations the deceased had to you
Size of estate
Any disability of the applicant

If you were married/civil partners, the Court will also be mindful of:-

Your age
Duration of marriage
What you contributed to the family (financially)
What you might have expected under divorce laws had you divorced on the date of death (sometimes known as a ‘deemed divorce’)

What can a Court Order?

In short, a Court can make any order that might otherwise have been included in the will by the testator when they made the will, including: a lump sum; regular payments; gift of property; creation of a trust; and so on.

How do I contest a Will?

The first step would normally be to contact the executors. And, try to negotiate with them. It is not always necessary to bring Court action. But, if you can not agree a settlement with the executors of the estate, Court action is the only/final option.

What are the time limits to contest a Will?

A claim brought under The Inheritance (Provision for Family and Dependants) Act 1975 must be brought within 6 months of the Grant of Probate being granted. Whilst a claim can be brought after that, it requires the consent of the Court who will generally be inclined to only do so in exceptional circumstances.

A claim brought challenging the validity of a will (ie other than family provision) can technically be brought at any time. The logistics of doing so however are best served with early steps being taken post death.

Either way, you can do so before or after Probate is granted (subject to the 6 months after Probate rule applying to finance provisions).

What is a Caveat?

If you wish to challenge a Will before Probate is obtained, you may wish to consider entering a ‘Caveat’ at the Probate Registry. This prevents the executors obtaining Probate for up to 6 months. It is possible to extend that period.

What Court deals with Contested Wills?

Contesting a will is a ‘civil’ (not criminal) matter. They are heard in what is called the ‘Chancery Division’ of the civil courts. Cases are heard before a Judge, with NO jury.