Everything you need to know about contesting a will:
Posted on 15th October 2021
Our specialist solicitors for wills discuss the process of contesting a will, and how we can guide you through the process smoothly.
In recent weeks, our wills and probate solicitors have heard of the inheritance dispute that has broken out over the Will of deceased Monty Python star, Terry Jones. The situation is one that our Wills and Probate solicitors see fairly commonly; where people who have re-married choose to leave the majority of their estate to their new spouse, with little, or nothing, being left to their adult children from a previous marriage.
This can be a particularly difficult and volatile situation, creating deep divisions and rifts between an already grieving family. The comedian’s children are suing his second wife, Anna Söderström, under the Inheritance (Provision for Family and Dependants) Act 1975 ("Inheritance Act 1975"), seeking ‘reasonable provisions’ from their father’s estate. But, will they win the legal battle, and do they have grounds to make a claim against their father's estate under the Inheritance Act 1975? Read on to learn more about Inheritance Act 1975 claims, and the process involved.
Who can make a claim for provision under Inheritance Act 1975?
Certain categories of people can make a claim for provision from an estate, these being set out in the Inheritance Act. These categories are:
The spouse or civil partner of the deceased;
The former spouse or civil partner of the deceased, providing that person has not re-married or entered into a new civil partnership;
A cohabitee of the deceased, living with the deceased as if they were spouses or civil partners, who lived with them for at least 2 years prior to death;
A child of the deceased;
A person who was treated as a child by the deceased; and
Any person who was maintained by the deceased (financially, either directly or indirectly) prior to their death. Examples of this maintenance could be gifts made by the deceased during their life, or a simple right to live rent free in their home.
How long do I have to make a claim against an estate?
If you intend to make a claim against an estate under the Inheritance Act 1975, proceedings must be issued in the court within 6 months of the Grant of Representation being issued (this being either the Grant of Probate, if the deceased left a Will, or Letters of Administration, if the deceased died intestate i.e. they did not leave a Will). It is worth noting, however, that if you wish to make a claim against an estate and you are outside of this time limit, you can apply to the Court for permission to make a claim. This will usually only be allowed in exceptional circumstances, such as those when the potential claimant has been prevented from making a claim within the perscribed time frame, such as illness or a lack of awareness surrounding their grounds to make a claim.
Our expert local probate solicitors would suggest that you do not delay making a claim, if you think that you have grounds. There is no guarantee that the Court will allow a claim outside of the time limit and, even if they do, you may be penalised for the delay.
What factors will the Court consider?
The Court will consider 3 questions in relation to a claim:
Does the deceased's Will, or the rules of intestacy, if there was no Will, make reasonable provision for the applicant?
If it does not, should the Court intervene to award further provision from the estate?
If it should, what type of provision would be reasonable?
The answer to question 3 can depend on which category the person applying falls into. For all of the categories bar spouses and civil partners (the first category above), the standard is for the person's maintenance. However, for spouses or civil partners, the question is whether there has been reasonable financial provision made in all the circumstances, not simply their maintenance.
Whether reasonable financial provision has been made will be considered by the Court objectively, and they will consider all the relevant circumstances.
The considerations which the Court must have are set out in the Inheritance Act 1975, as follows:
Current and future financial resources and needs of the applicant vs those of the beneficairies of the estate;
The obligations and responsbilities of the deceased towards the applicant and beneficiaries;
Size and nature of the estate;
Any physical or mental disability of the applicant or any beneficiary; and
Any other matter which the Court considers relevant, such as the conduct of the parties.
If the applicant is a spouse or civil partner, the Court will consider what they would have received if the marriage or civil partnership was terminated during the parties lifetimes by divorce or dissolution. Factors such as the age of the applicant, the length of the marriage/civil partnership and the applicant's contribution to the deceased's home and family.
What will the outcome be?
It is hard to say what the outcome of any given case will be in general terms, as the Court has wide and varied powers available to them. They could, for example, award lump sum provision to allow them to buy a house or for another purpose, or they may order periodical payments, or even the transfer or sale of a property.
Our expert local solicitors would recommend seeking expert advice from a barrister is every case involving a claim for provision from an estate under Inheritance Act 1975.
What if you think a Will is not valid?
If you do not have grounds to make a claim under the Inheritance Act 1975, but you are concerned that the deceased's Will was invalid, you may still be able to contest the Will. Read on to find out more about the grounds for contesting a Will.
What are the grounds for contesting a Will?
The deceased did not have the required mental capacity- If the person who is contesting a Will can raise suspicion that the deceased did not have the mental capacity for writing the will, they may have grounds to contest it. This type of inheritance dispute will often involve medical records and the assistance of a specialist medical expert.
The deceased did not properly understand and approve the content of the will- If the deceased might have had trouble in understanding the will for any way, such as being hard of hearing, visually impaired, or having low levels of literacy and reading, the court’s suspicions could be raised regarding the validity of the will.
Undue influence- If, during contesting the will, it can be proven that the deceased experienced undue influence, and that they were coerced into making their will in that way. It can be very difficult to prove undue influence when contesting a will.
Forgery and fraud- This method of contesting a will usually requires the assistance of a handwriting expert in order to examine the handwriting and signature of the will. The outcome of the claim will rely heavily on the outcome of this report from a handwriting expert, depending on whether or not they suggest that forgery has taken place.
Rectification- If a mistake is made during the drafting of a will, which most commonly occurs when a will is written without the help of a solicitor specialising in wills and probate, the will may not reflect the wishes of the deceased person. When this happens, the court is able to rectify the will and meet the wishes of the deceased. Contesting of a will on grounds of rectification must take place within six months of probate being granted.
How much does it cost to contest a Will?
When you are contesting the will, the costs involved can be affected by how long it takes to contest the Will, whether or not you have to go to Court as part of the process, and how cooperative the parties are during the proceedings.
To learn more about the costs involved with contesting a will, including our legal fees and other costs involved, do not hesitate to get in touch with our specialist solicitors for wills today, and hear back from us within one working hour. Our wills and probate specialists can offer fixed-fees, and payment plans.
How to contest a Will:
If you have not been left provisions in the will of a loved one, and feel that you might be eligible, then you could be considering your options with contesting the will, and making a claim against it. If you are considering doing this, then you should get in touch with the specialist solicitor for wills, to discuss contesting the will, and the process involved in making a claim against it.
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