Contesting a Will

Generally, a person is entitled dispose of their property on their death however they wish. A will cannot normally be challenged just because it is ‘unfair’ or makes ‘uneven’ gifts to friends or family, contrary to what the family and friends of the deceased might have expected.

However, there are several grounds on which a will can be contested including:

• That the deceased did not have testamentary capacity when they made the will (i.e. that the deceased did not understand the nature of the act of making a will and its effects)
• The will was procured by undue influence (i.e. the deceased was pressured into making the will to the extent that the pressure overbore the deceased’s free judgment)
• The will was not executed properly
• The deceased did not know and approve of the contents of the will
• The will is forged or is a result of dishonest statements

If it is determined that a will is not valid for any of the reasons set out above (and the deceased did not make an earlier will) the deceased’s property will be distributed according to the Intestacy Rules.

Inheritance Act Claims

The Inheritance (Provision for Family and Dependents) Act 1975 (“1975 Act”) provides a limited exception to the general rule that a person can dispose of their property on death however they wish. It allows the court to make provision out of the deceased’s estate for people who depended on them during their lifetime.

Not everyone can bring a claim under the 1975 Act. You must fall into one of several categories which include:

• The spouse of the deceased
• The former spouse of the deceased
• A child of the deceased
• Any person who has been maintained by the deceased immediately prior to their death.

Entitled to bring a claim

If you fall within one of the categories of people who are entitled to bring a claim, the court will consider whether the deceased’s will makes reasonable financial provision for you. It is also possible to make a claim under the 1975 Act if the deceased did not make a will and the estate is to be distributed according to the Intestacy Rules. If the deceased did not make a will then the court will consider whether the Intestacy Rules make reasonable financial provision for you.

When determining whether to make an order for financial provision under the 1975 Act, the court will take into account the following factors:

• The financial resources and financial needs which the applicant (i.e. you) has or is likely to have in the foreseeable future;
• The financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
• The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
• Any obligations and responsibilities which the deceased had towards any applicant for an order under the 1975 Act or towards any beneficiary of the estate of the deceased;
• The size and nature of the net estate of the deceased;
• Any physical or mental disability of any applicant for an order under the 1975 Act or any beneficiary of the estate of the deceased;
• Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

If the court considers that the deceased’s will (or the Intestacy Rules) do not make reasonable financial provision for you, the court will decide whether to make financial provision for the you (i.e. by ordering that you receive a sum of money from the estate of the deceased).

Whether the court will make an order for financial provision (and the amount of any such financial provision) will depend on the specific facts of the case. The court will look at the reasonable needs and resources of the applicant and whether there is an income shortfall taking into account the factors set out above.

If you think you might have a claim, it is important to seek advice early on. A claim under the 1975 Act must normally be brought within 6 months of the date of the grant of probate or letters of administration. It is therefore important to act quickly.

If you wish to bring a claim under the 1975 Act, you must be prepared to disclose information about your financial resources and financial needs.

If you want to contest a will or think that you may be eligible to bring a claim under the 1975 Act and would like advice in respect of the same, please call our offices on 0161 832 3304 and ask to speak to myself or Andrew Ryan who is Partner and Head of the Dispute Resolution department.

Found this article useful? You might be interested in some of our others:

• Will disputes
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