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Contesting a Will – do I have a case?

20 November 2020 Written by Ware & Kay Solicitors Category: Litigation

Will disputes are becoming increasingly common due to an increase in the elderly population, a rise in dementia and Alzheimer’s sufferers, changes in family structures and the increasing value of estates. 

What are the grounds for contesting a Will or estate?

Claim under the Inheritance (Provision for Family and Dependants) Act 1975

If you have been left out of a family member or a friend's Will, or if you do not think you have been left enough under a Will, then you may be able to make a claim for reasonable financial provision under the above Act.

There are a number of criteria which any potential claimant will need to satisfy, one of the most important ones of which is being able to demonstrate a "financial need".  There is a time limit of six months from the date of the Grant of Probate to bring a claim and claims cannot be brought outside of this time without the permission of the Court.  Claims may be made by:

  • Spouses/civil partners and former spouses and civil partners
  • Unmarried partners living with the deceased for two years prior to the death.
  • Children of the deceased
  • A person treated as a child of the deceased (including step-children)
  • Those being maintained by the deceased immediately prior to death (this could include wider family members, friends or partners).

Concerns over the validity of the Will

In some circumstances, a Will may not be valid. There are a number of ways to contest a Will and challenge its validity:

  • Lack of mental capacity. With an ageing population, the rise in cases of dementia and a greater awareness of other mental health issues, there is a definite rise in challenges to Wills on the basis the testator lacked mental capacity. If the person did not have the requisite mental capacity, the Will is not valid.
  • Lack of knowledge and approval of the terms of a Will. This is often linked to lack of mental capacity but can also be argued in other cases such as where English is not the first language for example. If a person did not know and approve the terms of the Will, the Will is not valid.
  • Undue influence. It is often the case that the person making the Will (testator) makes a Will at a time when they are particularly vulnerable, whether that is because of age or ill health, and this is open to abuse. If a person is forced into making a Will, then the Will is invalid.
  • Fraud and forgery. If a Will is forged or the signature is forged, then it is not valid.
  • Will not properly executed. There are certain formalities set out by the Wills Act 1837 which must be satisfied in order for a Will to be valid. This includes a Will being in writing, signed and witnessed. If a Will is not properly executed, it is invalid.

There is technically no time limit to bringing a claim to challenge the validity of a Will. However, it is very important that any Will dispute is brought quickly. There is a risk that an Estate could be distributed and the proceeds spent or moved out of reach, which will make a claim significantly more difficult. A delay in pursuing a claim could also be used as a defence to it. Therefore, it is important to speak to us quickly if you have an issue with a Will.

If you have been promised an inheritance but find out you have not been included in the Will

In certain circumstances, a promise can be enforceable. If you were promised inheritance and have not received it, and have relied on that promise which has led to your disadvantage, then you may be able to make a claim.

There are a number of ways to challenge a Will or make a claim against an Estate. For more information contact us today by completing our online contact form.

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