Can you challenge a Will?

After a death, you may have concerns over the Will. This could be because you do not believe it is valid or because you have been left out when you feel that you should have been included. We look at when a Will can be challenged and how to start the process.

It is likely to be a difficult time following the loss of a loved one, and emotions among family members may be running high. Will disputes can often be resolved amicably, but it is important to understand the grounds for contesting matters and to take prompt action, particularly if the executors are considering applying for a Grant of Probate.

When can a Will be challenged?

A Will can be contested if:

It is not valid; or
You were not included in the Will, (or you received less than you require for your reasonable needs) and you have a valid claim under the Inheritance (Provision for Family and Dependants) Act 1975

Challenging a Will on the grounds that it is not valid

There are a number of reasons why a Will may be invalid, including:

The Will was not correctly signed or the witnessing was not dealt with properly
The Will contains errors
The person who made the Will, known as the testator, was unduly influenced to make the Will in the terms that they did
The testator did not have the mental capacity to make a Will
The testator did not have knowledge and approval of the contents of the Will
Fraud or forgery was involved
The testator married after the Will was made and the Will was not made in contemplation of the marriage, meaning that it is automatically invalid

If a Will is declared invalid by the courts, then an earlier Will takes effect, if one exists. This means that it is crucial to have the full picture before raising a challenge, to ensure that it is the right option.

Challenging a Will under the Inheritance (Provision for Family and Dependants) Act 1975

If you were left out of a Will, you may be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act).

This allows the following individuals to apply for support from the estate:

The deceased’s spouse or civil partner
A former spouse or civil partner of the deceased, so long as they have not remarried or entered into a civil partnership with someone else
A cohabiting partner, provided that they were living with the deceased for a minimum of two years before the death
A child of the deceased
Someone the deceased treated as a child of their family
Someone being financially supported by the deceased at their death

If a claim is successful, the claimant is entitled to ‘reasonable financial provision’, unless they were the spouse or civil partner of the deceased. Reasonable financial provision is considered to be more than basic subsistence but not enough to provide a life of luxury.

When deciding how much to award, the court will take account of the following issues:

The claimant’s financial resources, including those likely to be available in the foreseeable future
The claimant’s financial needs, including those likely to arise in the foreseeable future
The resources and needs of any other beneficiaries or claimants
Any physical or mental disability that a beneficiary or claimant may have
Any other obligations the deceased may have had
The size and nature of the deceased’s estate
Any other issue the court considers to be relevant

If the successful claimant was the deceased’s spouse or civil partner, they will be entitled to a similar sum to that which they would have received in a divorce or civil partnership dissolution, which is likely to be more substantial than that paid to another claimant.

Time limits for challenging a Will

If you are considering making a claim under the Inheritance Act, you have six months from the date on which the Grant of Probate is issued to start your claim. If this deadline has passed, it will be necessary to ask the court for permission to make a late application.

It is always advisable to speak to a contentious probate solicitor as soon as possible when an inheritance disagreement arises. They are often able to resolve matters without the need for legal action, and this is generally the best option. As well as being faster and more cost-effective, it can help prevent family relationships from deteriorating.

Contact Us:

If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com