Challenging a will

Claims under an Act known as the “Inheritance (Provision for Family and Dependants) Act 1975″ are often referred to as “Inheritance Act Claims”. They are sometimes called “Section 2 claims” or “Financial Provision Claims”.
Inheritance Act claims are not, technically, a challenge to a Will. The claim is actually a claim brought against an estate. The right to bring a claim arises where an individual does not receive “reasonable financial provision” from the estate of someone who has died. If successful, the Court is able to order that the successful party should receive more from the estate than they otherwise would. 

The rules are very strict as to who has a right to bring a claim. Most claims are brought by Husbands and Wives of the deceased, or by children, but they are not the only people who can claim. We can help you assess whether you are entitled to bring a claim, and to assess whether that claim is likely to be successful.

The time limits for bringing an Inheritance Act claim are very tight and so it is important that you act quickly if you want to consider such a claim. It is also important that you have expert advice as to the amount that you should be claiming as the rules are very complicated.

We have considerable practical experience of settling Inheritance Act claims without the need for the matter to go to Court, and of dealing with cases which do proceed to Court.

If you want to challenge the Will of someone who has died, you need to think about the legal basis for that challenge. A Will requires that 2 independent people witness the signing process. For this reason, it can be very difficult to successfully challenge a Will. In addition, the person who made the Will, known as the “Testator” will have died by the time the matter is discussed, taking away a valuable source of evidence.
If you want to challenge a Will it is important that you act quickly as strict time limits may apply to your claim. It is also important that you consider the legal basis for your claim. The following represents the main ways in which to challenge a Will: 

1. Technical Issues:

In all claims to challenge a Will on the other grounds (set out below) we will check to see that the Will is “technically valid”. A Will which is not “technically valid” is not a valid Will and so the other grounds on which to challenge a Will become irrelevant.

In checking that a Will is technically valid, we will make sure it is signed by the “Testator” (or “the Testatrix if female”) and that there are 2 witnesses who have also signed the Will. In addition, we will check that the other formalities for making a valid Will, set out in the Wills Act, are complied with.

2. Lack of capacity:

For a Will to be valid, the Testator must have been of “sound mind” at the time the Will was made. The Testator needs to understand, at the time the Will is signed:

• What assets that he / she has which will pass under the Will
• The nature of the act of making a Will (and its effect)
• The claims to which he ought to give effect (even if he then decides not to)

The final requirement for a person to have the necessary legal capacity to make a Will is that the person making is not suffering from a “disorder of the mind” which “shall poison his affections, pervert his sense of right or prevent the exercise of the natural faculties”.

If a person makes a Will and opts to disinherit a member of their family, this is not evidence (without considerably more) that the Will is invalid due to lack of mental capacity. Once it has been established that a person has the mental capacity to make a Will they can, broadly, do what they like with their assets. We call this “freedom of testamentary disposition”.

However, it is often the case that we are first instructed on a matter because the Will is unusual. Perhaps it leaves out someone who cared for the deceased, or who was close to the deceased. The fact that the Will is unusual does not necessarily mean that it can be challenged but it can be evidence of wider mental capacity problems at the time the Will was made.

3. Lack of Knowledge and Approval:

Sometimes it can be the case that the Testator did not know and understand the nature of the Will that has been signed. If so, the Will is invalid.

The circumstances surrounding the signing of the Will may arouse suspicions that the Testator did not know and understand the Will that has been signed. Examples of this are where the Testator did not read the Will himself before signing it, or it was not read out to the Testator by someone else, or a solicitor was initially contacted by a person other than the Testator, who benefits under the Will. In these situations, it may be possible to claim that the Testator did not know and understand the Will.

If the Testator had eye-sight difficulties and the Will was prepared by a solicitor, it will be more difficult to challenge the Will for a lack of knowledge and approval, than if the Testator made a home-made Will.

4. Undue Influence:

The Testator should not have been under any pressure or duress from any other person to make their Will in a particular way. If they were, the Will is not valid.

Elderly people, particularly those who are physically dependent upon friends or family are more susceptible than others to being victims of undue influence.

The Testator may have suffered violence or confinement at the hands of someone wanting them to change their Will. This is known as “actual undue influence”. It may be either one significant act or a series of acts carried out over many years, which coerce the Testator into making a Will benefiting that person.

Alternatively, where there is a “special relationship” between the Testator and the other person (such as, parent / child, client / solicitor, patient / doctor) and the Testator has left a significant gift in their Will to that person, which appears unusual, the Testator may have been influenced by that person. This is known as “presumed undue influence”. Whether the Testator has been influenced by someone else in the making of their Will depends on the nature of the Testator’s relationship with that person.

It is often difficult to challenge a Will on this basis, as you need strong evidence to show that the Testator has been coerced into making their Will. We will investigate the circumstances surrounding the making of the Will and advise you on the merits of challenging a Will in this way.

Someone who prepares a Will as a part of their business is under a “legal duty of care” to the “beneficiaries” (the people who receive money or assets under the Will) to take reasonable skill and care when preparing it.
Sometimes people who prepare Wills get it wrong. If that person who prepared the Will was a solicitor or a will writer, you may have recourse against them as a “disappointed beneficiary”. Clearly, if the Will was a “home-made Will” this claim is not possible. 

A “disappointed beneficiary” is someone who can show that they would probably have benefited under the Will if it had been drafted properly. In other cases, a solicitor or will writer who takes too long to prepare a Will can be negligent if the person dies before signing it.

Similarly, if a Will contains a typographical error, such as leaving assets to the wrong person and it can be proved that this is not what the Testator wanted, then you can make an application to the Court to correct or “rectify” the Will.
If the person who has drafted the Will misunderstands the Testator’s wishes, the Court will also order that the Will is rectified. 

Where the Will has been negligently-drafted by a solicitor, you will need to consider whether the Will can be rectified by the Court first before suing the solicitor for negligence.

If you owned a property jointly with the person who died or if you have made a substantial contribution to the cost of any property that was owned solely by the person who died at the time of their death, you may be able to make a claim for all or part of that property.
We can look back at the contributions that you have made to the property, including financial contributions towards the mortgage, outgoings and any improvements to the property and your family, in general. We can assess whether you have the right to bring a claim against the person’s estate for all or part of that property. 

This is particularly relevant for those who were co-habiting with the person who died.

In addition, we will also look at whether you can bring a “1975 Act claim” (explained above) for reasonable financial provision” from the estate of someone who has died.

The Executors or Administrators of an estate have a duty to the beneficiaries to collect in the assets in the estate and distribute them in accordance with the Will or the rules of intestacy (if there is no Will).
Where an Executor or Administrator fails to carry out their duty or has acted negligently and caused financial loss to the estate, the beneficiaries of the estate can make a claim against them. The Executor or Administrator may have failed to carry out the provisions of the Will, distributed assets to someone who is not named in the Will, sold an asset for less than it was worth or obtained a personal benefit from the estate. 

We can review the provisions in the Will and the action that the Executor or Administrator has / has not taken and advise you on bringing a claim against them.