Where There’s a Will There’s a Dispute
We are often approached by clients wishing to ‘contest’ a Will when in fact they are unhappy with the provisions of the Will rather than its legality.
What do we mean by ‘contesting’ a Will?
The contesting of a Will is a challenge to the validity of the Will itself. There are strict criteria surrounding the preparation of a Will and failure to comply can mean the Will is not valid. We all know that you have to have sufficient mental capacity to make a Will and that you should not be under duress to do so. Mental capacity also extends not only to understanding what a Will does but also to an understanding of the size and nature of the estate and who may have a claim against the estate if that person is not included as a beneficiary.
In addition, the Will there are strict rules surrounding the signing of a Will and although it is not difficult, it is very easy get this wrong. Wills must be signed correctly in the presence of two witnesses with all three parties signing in each other’s presence. Witnesses must not be beneficiaries of the estate or married to someone who is due to benefit.
What if I am unhappy with the provisions in the Will?
In most cases, the Will itself is valid but the person wishing to ‘contest’ the Will simply does not think they have been left a sufficient proportion of the estate. This is a claim under the Inheritance (Provision for Family and Dependents) Act 1975 or a ‘1975 Claim’ for short. This commonly involves a child who has been given a much smaller share of the estate than their siblings or excluded from benefiting altogether. Being someone’s child does not give you an automatic right to inherit a share of their estate but there are cases where adult children who were not dependent on their parent for their standard of living have made successful claims. The most publicised case is that of Ilot v The Blue Cross in which an adult daughter was awarded a share of her estranged Mother’s estate.
It is not only the children of the deceased who can bring claims; it may be a disappointed spouse or someone who has acted to their detriment on the reasonable expectation of inheriting under the Will.
What does the Court look at when considering a claim?
The Act considers what provision there is for maintenance of the claimant and does the Will make enough provision if any. In considering this, the following will be taken into account:
- The claimants existing financial resources
- The size of the estate in question
- Was the claimant dependent on the deceased for their standard of living
- Does the claimant have any mental or physical disabilities or pre-existing health conditions, which would require additional financial provision?
How Keelys Solicitors can help.
Given how important a Will is, it is vital that all steps are taken to defeat either a claim the Will is not valid or a 1975 Act claim. To ensure all the criteria surrounding the drafting and execution of the Will are followed and that appropriate evidence is filed with the Will to support the reasoning behind the provisions, it is important to take professional advice.
Contact a member of our Private Client Team, Catherine Elliott, Helen Jolly or Helen Phillips today on 01543 420000 for advice on making a Will or Patrick Farrington for advice on challenging a Will. Alternatively you can email firstname.lastname@example.org