Challenging a Will is not a simple process. It is extremely complex and usually very demanding in terms of both time and money. However, due to the rise in people attempting to draft their own Wills – this action is becoming more common. Without professional legal advice many people make mistakes, which may mean the Will is more likely to be challenged by other potential beneficiaries at a later date.
In the UK people are largely free to leave their property, money and assets to whoever they like, but there are some restrictions.
In order to contest a Will, there needs to be valid legal grounds to do so.
There is a strong awareness that a deceased’s wishes may be disputed even when the deceased left a Will. There are several grounds to challenge a Will, including:
- lack of valid execution
- lack of testamentary capacity
- lack of knowledge and approval
- undue influence; and
- forgery/fraud
If a Will is found to be invalid by reason of any of the above, then the estate will be administered in accordance with the terms of the deceased’s previous valid will or, if there isn’t one, in accordance with the intestacy rules.
What can I do if I have been left out of a Will or I am unhappy about my share?
You may be able to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975. This Act allows certain categories of claimant to bring a claim against an estate where ‘reasonable financial provision’ has not been made for them either under a Will or intestacy.
The categories of potential claimant include a spouse or civil partner, a former spouse or civil partner who has not remarried or entered into a new civil partnership, a child of the deceased (including an adult child), anyone treated by the deceased as their child, such as a step child, anyone who, for the two years immediately before the death of the deceased was living with the deceased as husband and wife, or anyone who was financially dependent on the deceased immediately prior to the deceased’s death.
The court will consider a number of factors in order to decide whether ‘reasonable financial provision’ has been made for you and if not, what provision to order.
We suggest that you seek legal advice as soon as possible about whether such a claim is appropriate and whether there is any merit in bringing such a claim. Claims under this Act must be issued at court within six months of the date of the Grant of Probate or Letters of Administration.
What should I do if I want to contest a Will?
You should seek legal advice as soon as possible. As an initial step you may be advised to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a Grant and administering the estate.
This will allow further time in which to make investigations as to the circumstances surrounding the preparation and execution of the will which may include obtaining the deceased’s medical records and information from any solicitor instructed in relation to the preparation of the Will.
I am a beneficiary of an estate and am not happy with the way in which the executors are dealing with the estate. Is there anything I can do?
Each estate and each administration is different and therefore there is no set time in which an estate should be administered. However, you are entitled to ask for information about the estate from the executor and to receive updates.
If you have concerns that an executor is not dealing with an estate properly, then you may be able to apply to the court to remove him or her and replace him with another person.
For further information on challenging a Will, please contact Helen Phillips on 01792 468684 or email helen@pgmsolicitors.co.uk
