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Challenging a Will

English law recognises an individual’s right to choose who should inherit his or her property by allowing that individual to make a Will. The law, however, provides a number of opportunities by which a Will can be challenged.

1. CLAIMS ALLEGING LACK OF MENTAL CAPACITY

A person making a Will must have the mental capacity to do so. If this fact is challenged a court would need to decide whether such mental capacity was present at the time the Will was signed and would do so by considering whether the person making the Will understood :-

(i) that he or she was making a Will which would only become affective on their death and that the Will could be changed at any time before death as long as the person making the Will retained mental capacity to do so;

(ii) the effect of making the Will including the purpose of appointing Executors and who they are, why any earlier Will might be being replaced and that the size, nature and value of his or her property may change between the date of making the Will and death;

(iii) the extent of the property which is being disposed of and the fact that, for example, jointly owned property may not form part of the Estate but may automatically pass on death to the other joint owner;

(iv) the individuals that he or she ought to consider as benefiting under the Will, for example, children and why certain preferences may have been chosen e.g. a greater share to a child with a disability where there might be less possibility of that child providing for himself or herself.

It must be understood, however, that a person making a Will can act irrationally and even foolishly in deciding who should inherit and the Will may not necessarily be set aside as a consequence.

2. KNOWLEDGE AND APPROVAL OF THE CONTENT OF THE WILL

In certain situations it may be necessary to prove that the person who made the Will either :-

(i) asked for a Will to be prepared and gave instructions for that purpose, and/or

(ii) had the Will read over to him or her

Examples of such situations include :-

  • when instructions have been given by a deaf and dumb person which are not in writing;
  • when instructions have been given by a person who is unable to speak or write or is paralysed;
  • where a blind or illiterate person has made a Will which does not contain a statement confirming that the Will was read to that person before it was signed;
  • where the Will is signed by someone else other than the person making the Will supposedly at his or her request;
  • where there are grave concerns about the preparation of the Will and, for example,

i) the Will has been prepared by beneficiaries who benefit substantially from it;

ii) the person making the Will has not had the benefit of independent advice before the Will was prepared and executed;

iii) when instructions for the Will are given by a beneficiary;

  • where the Will has been made by mistake.

3. UNDUE INFLUENCE

To make a valid Will an individual must be free to make his or her own decisions although appeals to the affections or ties of close family or a request to be remembered for past services rendered are lawful and the person making the Will may be properly prompted with regard to such matters. By contrast, however, pressure brought to bear in a manner which over powers free will will constitute undue influence.

 

In order to challenge a Will on the basis of undue influence, actual undue influence must be proven and which involves the need to establish coercion. A recent description by Ward LJ in the Court of Appeal explains how Courts should view such claims :-

 

“In all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand influence. The donor may be led but she must not be driven and her Will must be the offspring of her own volition, not a record of someone else. There is no undue influence unless the donor if she were free and informed could say “this is not my wish but I must do it””.

 

Undue influence will not be presumed and must be proven by the person alleging it has occurred. Establishing that the facts imply undue influence is insufficient. The facts must be shown to be inconsistent with any other conclusion.

 


4. A CLAIM UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975.

 

As already mentioned an individual is entitled to leave his or her property to whomsoever that individual chooses. However, in certain circumstances a specified category of persons may apply to a court to oppose their entitlement, or lack of it, on the basis that the Will of the deceased (or the way in which the law determines how the Estate of the deceased will be divided if no Will exists) has not made reasonable financial provision for the person bringing the claim. Such a claim, if successful, does not invalidate the Will but redistributes the Estate of the Deceased in accordance with terms ordered by a court.

A claim of this type is brought under the Inheritance (Provision for Family and Dependants) Act 1975 and can only be made by the following categories of person :-

  • the husband/wife or civil partner of the deceased
  • a former husband/wife or civil partner of the deceased who has not remarried or formed any subsequent civil partnership
  • any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, had been treated by the deceased as a child of the family in relation to that marriage or civil partnership
  • any person who immediately before the death of the deceased was being maintained wholly or in part by the deceased

To pursue a claim an applicant must be living at the time of any such application and remain alive until it is concluded.

Time limits for a 1975 Act claim

Any such claim must be made to a court within six months of the Grant of Probate or Letters of Administration although a court does have a discretion to extend that time limit on application by a claimant.

What is reasonable financial provision?

If the claimant falls into the category of person entitled to bring a claim the court has to decide :-

i) whether the disposition of the estate of the deceased as a result of the Will or the intestacy laws makes reasonable financial provision for the claimant and, if not,

ii) a court can decide what would be reasonable financial provision taking account of matters set out in the 1975 Act to which the court must have regard.

 

The 1975 Act provides a distinction between a claimant who is a surviving spouse or civil partner of the deceased and all other categories of claimant.

Surviving spouse or civil partner

When considering whether reasonable financial provision has been made in such circumstances and, if the Court considers that it has not, then in determining whether and in what manner the Court is to exercise its powers it will have regard to the following :-

  • the financial resources and financial needs which the claimant has or is likely to have in the foreseeable future;
  • financial resources and financial needs which any other claimant for an order under the Act has or is likely to have in the foreseeable future;
  • the financial resources and financial needs which any beneficiary of the Estate of the deceased has or is likely to have in the foreseeable future;
  • any obligations and responsibilities which the deceased had towards any claimant for an order under the Act or towards any beneficiary of the Estate of the deceased;
  • the size and nature of the net Estate of the deceased;
  • any physical or mental disability of any claimant for an order under the Act or any beneficiary of the Estate of the deceased;
  • any other matter, including the conduct of the claimant or any other person, which in the circumstances of the case the court may consider relevant;
  • the age of the claimant and the duration of the marriage;
  • the contribution made by the claimant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;
  • the provision which the claimant might reasonably have expected to receive if, on the day on which the deceased died, the marriage, instead of being ended by death, had been ended by a decree of divorce.

A former spouse of the deceased who has not remarried or civil partner and cohabitant

The same matters are to be considered save that with regard to a cohabitant the length of period during which the claimant lived as the husband or wife of the deceased and in the same household is also to be taken into account.

A child of the deceased

Again, the same matters are to be considered excluding the age of the claimant and duration of the marriage and the contribution made to the welfare of the family of the deceased but with the addition of :-

  • the manner in which the claimant was being, or in which he might have expected to be, educated or trained
  • a person treated as a child of the family

Where the claim is made by a person (not being a child of the Deceased) who was treated by the Deceased as a child of the family, the Court must take into account the same matters as with a child of the deceased but with the addition of :-

  • whether the Deceased had assumed any responsibility for the claimant’s maintenance and, if so, the extent to which and the basis upon which the Deceased assumed that responsibility, and the length of time for which the Deceased discharged that responsibility;
  • whether, in assuming and discharging that responsibility, the Deceased did so knowing that the claimant was not his own child; and
  • the liability of any other person to maintain the claimant.

Any other person who was being maintained by the Deceased

In the case of a claim by any other person who, immediately before the death of the Deceased, was being maintained, either wholly or partly, by the Deceased the court must have regard to the same matters as with a child of the family but excluding the manner in which the claimant was being, or in which he might have expected to be educated or trained but with the addition of :-

  • the extent to which, and the basis upon which, the Deceased assumed responsibility for the maintenance of the claimant, and the length of time for which the Deceased discharged that responsibility.

What orders can the Court make?

 

If the Court is satisfied that the Will of the Deceased or the law relating to intestacy, or the combination of the Will and that law, does not make reasonable financial provision for the claimant, it may make one or more of the following orders :-

  • an order for periodical payments to be paid to the claimant out of the net Estate of the Deceased of such an amount and for such period of time as the court may decide;
  • an order for payment of a lump sum to be paid to the claimant out of the net Estate of such amount as the court may decide;
  • an order for the transfer to the claimant of such property comprised in the Estate as the court may decide;
  • an order for the settlement for the benefit of the claimant of such property comprised in the Estate as the court may decide;
  • an order for the purchase and transfer to the claimant of property using funds from the net Estate;
  • an order varying any ante-nuptial or post-nuptial settlement made on the parties to a marriage to which the Deceased was one of the parties and the variation being for the benefit of the surviving party to that marriage, or any child of the marriage, or any person who was treated by the Deceased as a child of the family in relation to that marriage.

How can Hodge Halsall help me?

 

Hodge Halsall have many years experience in assisting clients with Wills, probate and in estate litigation. We work with clients to assess the relevant issues and advise frankly upon the legal options and avenues available to resolve disputes arising in such circumstances.

It is essential that prompt legal advice about such issues is taken as strict time limits can apply in relation to such claims. Please contact us for further information.