“It’s not fair” – Contesting a Will
We are seeing an increase in the number of people who are considering contesting a Will.
Some are surprised that there are simply no grounds for them to do so (“but, it’s not fair!”), having assumed that the law is always going to give some recourse to justice to those who feel they have been treated unfairly.
However, the law of contentious probate has evolved striving to strike a balance between the fundamental principle of respecting a person’s last wishes on how to distribute their property, and the need to recognise certain situations in which it is right and proper for a court to intervene and make an adjustment to that distribution.
This has left disgruntled people on both sides of the debate – from those who are outraged that someone could potentially re-allocate their estate against their wishes after they die, to those baffled that they have been, perhaps completely spuriously, left out of a Will, and have no means of challenging it.
The main claims for contesting a Will
In reality, there are fairly limited situations in which you can dispute a Will, with claims falling into two main categories:
- The Will is invalid
This could be because:
- The deceased did not have mental capacity at the time of making their Will
- The Will has been forged or tampered with in some way
- The deceased was manipulated into drafting their Will in a particular way
- The Will simply hasn’t been executed correctly
Clearly, such claims will rest on your ability to evidence your position. It will not be enough to make bare allegations that you cannot back up with sufficient proof.
This will not always be easy when you do not have access to the Will file, and those handling the estate are not providing you with information. By speaking to a lawyer at an early stage you may be able to access that information more quickly, for example by making a Larke v Nugus request, or an application for pre-action disclosure. This will put you in a better position to make an informed decision about whether to challenge the Will or not.
- The Will is valid, but it doesn’t make reasonable financial provision for the claimant
Only certain categories of people can bring this kind of claim, under the Inheritance Act 1975:
- Spouse/civil partner of the deceased
- Former spouse or civil partner of the deceased (in certain circumstances)
- Child of the deceased
- A person treated as a child by the deceased from a marriage or civil partnership (e.g. a step-child)
- Anyone who, immediately before the deceased’s death was being maintained by the deceased
Most of the above applicants will have to show that the Will fails to make “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.” Realistically, this means that cases where an adult claimant with no disabilities/vulnerabilities can make a successful claim will be limited.
Spouses and civil partners are not restricted to what is reasonable for their maintenance, and therefore may have a higher chance of successfully challenging a Will.
Note that Inheritance Act claims must be made within 6 months of probate being granted, so if you are considering a claim, do not sit on it.
Success in contesting a Will
Unsurprisingly, Will disputes are highly emotionally charged, and can be as much about the principle as the money. As in all dispute resolution however, a degree of pragmatism is key, and anyone considering disputing a Will needs to carefully review their prospects of success at an early stage.
This is also an area of law where the courts’ decisions have always been very fact-specific and therefore, to a large extent, unpredictable. With high levels of uncertainty as to outcome comes an increased benefit to considering early settlement wherever possible.
If you find yourself in this position: act quickly, take expert advice to find out where you stand, and remain as pragmatic as you can at all times.