Challenging a Will
Many individuals accumulate substantial possessions during their lifetime and leave valuable assets at the time of their death. When large sums of money are involved contested Estate claims and other disputes often arise between family members and other potential beneficiaries after a person dies. A Will should be drafted by a professional with sufficient knowledge and expertise to ensure that the wishes of the testator will be fulfilled after death. If a Will is not valid or if it fails to distribute all assets or fails properly to provide for a dependant of the deceased the chances of a claim against the Estate or a challenge to the Will increase.
The circumstances in which the Will was prepared or the possibility that the person making the Will was ill or incapacitated at the time may give rise to challenges to the Will by relatives or others regarding its validity.
Validity of a Will
To be valid a Will must be :
- made by a person aged 18 or over; and
- made voluntarily and without pressure from any other person; and
- made by a person with the necessary mental capacity who is fully aware that they are making a Will and aware of the property and the identity of the individuals provided for by the Will; and
- in writing signed by the person making the Will in the presence of two witnesses and
- signed by the two witnesses in the presence of the person making the Will after it has been signed.
Claims alleging lack of mental capacity
Questions about capacity may arise in many circumstances particularly when the person making the Will suffers from a mental or some other illness which casts doubt on their ability to make an informed decision or to adequately communicate their intentions. If an allegation of lack of mental capacity is made a court would need to decide whether such capacity was present at the time the Will was signed and would do so by considering whether the person making the Will understood :-
- that he or she was making a Will which would only become effective on their death and that the Will could be changed at any time before death as long as the person making the Will retained mental capacity to do so;
- the effect of making the Will including the purpose of appointing Executors and who they are, why any earlier Will might be being replaced and that the size, nature and value of his or her property may change between the date of making the Will and death;
- the extent of the property which is being disposed of and the fact that, for example, jointly owned property may not form part of the Estate but may automatically pass on death to the other joint owner;
- the individuals that he or she ought to consider as benefitting under the Will, for example, children and why certain preferences may have been chosen. This might include a greater share to a child with a disability where there might be less possibility of that child providing for himself or herself.
It must be understood, however, that a person making a Will can act irrationally and even foolishly in deciding who should inherit and the Will may not necessarily be set aside as a consequence.
The law on capacity disputes can be complex. Our wills and probate specialists have the knowledge and experience necessary to advise executors, relatives and others about legal capacity questions under English law.
Knowledge and approval of the content of the Will
In certain situations it may be necessary to prove that the person who made the Will either :-
- asked for a Will to be prepared and gave instructions for that purpose, and/or
- had the Will read over to him or her.
Examples of such situations will include where :
- instructions have been given by a deaf and dumb person which are not in writing;
- instructions have been given by a person who is unable to speak or write or is paralysed;
- a blind or illiterate person has made a Will which does not contain a statement confirming that the Will was read to that person before it was signed;
- the Will was signed by someone else other than the person making the Will supposedly at his or her request;
- there are grave concerns about the preparation of the Will and, for example;
(i) the Will has been prepared by beneficiaries who benefit substantially from it;
(ii) the person making the Will has not had the benefit of independent advice before the Will was prepared and executed;
(iii) instructions for the Will are given by a beneficiary;
- the Will has been made by mistake.
To make a valid Will an individual must be free to make his or her own decisions although appeals to the affections or ties of close family or a request to be remembered for past services rendered are lawful and the person making the Will may be properly prompted with regard to such matters. By contrast, however, pressure brought to bear in a manner which over powers free will constitutes undue influence.
In order to challenge a Will on the basis of undue influence, actual undue influence must be proven which involves the need to establish coercion. Comments made recently in the Court of Appeal identify how courts should view such claims :-
“In all cases of undue influence the critical question is whether or not the persuasion or the advice, in other words, the influence, has invaded the free volition of the donor to accept or reject the persuasion or advice or withstand influence.
The donor may be led but she must not be driven and her Will must be the off spring of her own volition, not a record of someone else. There is no undue influence unless the donor if she were free and informed could say “this is not my wish but I must do it”.
Undue influence will not be presumed and must be proven by the person alleging that it has occurred. Establishing that the facts imply undue influence is not enough. The facts must be shown to be inconsistent with any other conclusions.
With many years experience in estates law, Oak Tree Probate Solutions regularly act for the Executors of Estates in advising on and defending claims made against deceased’s Estates. We also regularly advise claimants on their rights in such circumstances.
A claim under the Inheritance (Provision for Family & Dependants) Act 1975
As already mentioned an individual is entitled to leave his or her property to whomsoever that individual chooses. However, in certain circumstances a specified category of persons may apply to a court to oppose their entitlement, or lack of it, on the basis that the Will of the deceased (or the way in which the law determines how the Estate of the deceased will be divided if no Will exists) has not made reasonable financial provision for the person bringing the claim. Such a claim, if successful, does not invalidate the Will but redistributes the Estate of the Deceased in accordance with terms ordered by a court.
A claim of this type is brought under the Inheritance (Provision for Family and Dependants) Act 1975 and can only be made by the following categories of person :
- the husband/wife or civil partner of the deceased
- a former husband/wife or civil partner of the deceased who has not remarried or formed any subsequent civil partnership
- any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, had been treated by the deceased as a child of the family in relation to that marriage or civil partnership
- any person who immediately before the death of the deceased was being maintained wholly or in part by the deceased
- To pursue a claim an applicant must be living at the time of any such application and remain alive until it is concluded.
Time limits for a 1975 Act claim
Any such claim must be made to a court within six months of the Grant of Probate or Letters of Administration although a court does have a discretion to extend that time limit on application by a claimant.
What is reasonable financial provision?
If the claimant falls into the category of person entitled to bring a claim the court has to decide :
- whether the disposition of the estate of the deceased as a result of the Will or the intestacy laws makes reasonable financial provision for the claimant and, if not,
- a court can decide what would be reasonable financial provision taking account of matters set out in the 1975 Act to which the court must have regard.
The 1975 Act provides a distinction between a claimant who is a surviving spouse or civil partner of the deceased and all other categories of claimant.
Surviving spouse or civil partner
When considering whether reasonable financial provision has been made in such circumstances and, if the Court considers that it has not, then in determining whether and in what manner the Court is to exercise its powers it will have regard to the following :
the financial resources and financial needs which the claimant has or is likely to have in the foreseeable future;
- financial resources and financial needs which any other claimant for an order under the Act 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 claimant for an order under the 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 claimant for an order under the Act or any beneficiary of the Estate of the deceased;
- any other matter, including the conduct of the claimant or any other person, which in the circumstances of the case the court may consider relevant;
- the age of the claimant and the duration of the marriage;
- the contribution made by the claimant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;
- the provision which the claimant might reasonably have expected to receive if, on the day on which the deceased died, the marriage, instead of being ended by death, had been ended by a decree of divorce.
A former spouse of the deceased who has not remarried or civil partner and cohabitant
The same matters are to be considered save that with regard to a cohabitant the length of period during which the claimant lived as the husband or wife of the deceased and in the same household is also to be taken into account.
A child of the deceased
Again, the same matters are to be considered excluding the age of the claimant and duration of the marriage and the contribution made to the welfare of the family of the deceased but with the addition of :-
the manner in which the claimant was being, or in which he might have expected to be, educated or trained
- a person treated as a child of the family
Where the claim is made by a person (not being a child of the Deceased) who was treated by the Deceased as a child of the family, the Court must take into account the same matters as with a child of the deceased but with the addition of :
- whether the Deceased had assumed any responsibility for the claimant’s maintenance and, if so, the extent to which and the basis upon which the Deceased assumed that responsibility, and the length of time for which the Deceased discharged that responsibility;
- whether, in assuming and discharging that responsibility, the Deceased did so knowing that the claimant was not his own child; and
- the liability of any other person to maintain the claimant.
Any other person who was being maintained by the Deceased
In the case of a claim by any other person who, immediately before the death of the Deceased, was being maintained, either wholly or partly, by the Deceased the court must have regard to the same matters as with a child of the family but excluding the manner in which the claimant was being, or in which he might have expected to be educated or trained but with the addition of :-
- the extent to which, and the basis upon which, the Deceased assumed responsibility for the maintenance of the claimant, and the length of time for which the Deceased discharged that responsibility.
What orders can the Court make?
- If the Court is satisfied that the Will of the Deceased or the law relating to intestacy, or the combination of the Will and that law, does not make reasonable financial provision for the claimant, it may make one or more of the following orders :
- an order for periodical payments to be paid to the claimant out of the net Estate of the Deceased of such an amount and for such period of time as the court may decide;
- an order for payment of a lump sum to be paid to the claimant out of the net Estate of such amount as the court may decide;
- an order for the transfer to the claimant of such property comprised in the Estate as the court may decide;
- an order for the settlement for the benefit of the claimant of such property comprised in the Estate as the court may decide;
- an order for the purchase and transfer to the claimant of property using funds from the net Estate;
- an order varying any ante-nuptial or post-nuptial settlement made on the parties to a marriage to which the Deceased was one of the parties and the variation being for the benefit of the surviving party to that marriage, or any child of the marriage, or any person who was treated by the Deceased as a child of the family in relation to that marriage.
How can Oak Tree Probate Solutions help me?
We have many years experience in assisting clients with Wills, probate and estate litigation. We work with clients to assess the relevant issues and advise frankly upon the legal options and avenues available to resolve disputes arising in such circumstances. Please contact us for further information.
Prompt legal advice about such issues is essential as strict time limits apply in relation to claims.