Challenging the Will

Generally under English Law it is the prerogative of each person to leave their assets to whoever they choose. However, there are certain grounds on which a Will can be challenged. Alternatively, certain categories of person may be entitled to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 [“the Inheritance Act”].

On what grounds can a Will be challenged?

There are four grounds under which a Will may be challenged.

1. Lack of testamentary capacity: A person must be over 18 and must have the necessary mental capacity when the Will is signed in order to make a valid Will. Considering mental capacity is especially important where the Testator is elderly or infirm.
2. Failure to correctly execute the Will: There are certain legal formalities which must be complied with when a Will is executed. If any of the requisite legal conditions are not fulfilled, they will be invalid and therefore useless.
3. Lack of knowledge and approval: When a Testator makes a Will it is vital that they have an intention not only to make a Will, but also to make this Will. This intention is presumed if the Will is properly executed and the Testator had the relevant mental capacity. However, there are circumstances in which this presumption will not apply, such as if there are suspicious circumstances surrounding how the Will was drawn up, or if a Testator who is blind or illiterate is not personally signing the Will.
4. Undue influence, fraud and mistake: A Will may be invalid through undue influence if the Testator’s freedom of choice was overcome by intolerable pressure of if the Testator was subjected to duress. This ground also covers instances where you think the Testator made his Will (or part of it) as a result of fraud i.e. after being misled by some pretence and/or mistake.

Could I have a claim under the Inheritance Act?

Even if there is no dispute as to the validity of a Will, the Inheritance Act enables certain categories of people to make a claim for ‘reasonable financial provision’. There are six categories of person who may be able to make a claim under the Act:

1. A spouse involved: this includes a spouse who has been separated from the deceased.
2. A former spouse: the former spouse must not have re-married prior to the date of death.
3. A co-habitee: the co-habitee must have been living in the same household as the deceased, as husband or wife, for a period of two whole years prior to death. New legislation will extend this to expressly include same-sex partners who have been living as a civil partner with the deceased in the same household for a period of two whole years prior to death.
4. A child: this category includes adult children, children from a non-marital relationship, adopted and legitimised children and children conceived prior to death but not born until after death.
5. A person treated as a child of the marriage (e.g. a stepchild).
6. A person wholly or partly maintained by the Deceased: the contribution must have been substantial and ongoing immediately before death. In deciding what is ‘reasonable’ the Court will generally look at all the circumstances which existed at the date of death. The size of the estate and the financial resources and needs of all the parties are obviously going to be key factors. If the individual claiming has a mental or physical disability he/she is likely to have a stronger claim.

Clarkson Wright &  Jakes have a team of Lawyers dedicated to dealing with all aspects of contentious probate and trust affairs, from claims over the validity of a Will to whom should inherit what part of an estate. Whether you are asserting or defending a claim, we can help. For more information or to discuss a potential claim, please call Amanda Mehlin on 01689 887815 or email amanda.mehlin@cwj.co.uk