As will disputes become more frequent, more people are challenging the last wishes of their loved ones; questioning a will’s validity, contents and the intentions behind them.
The starting position is that the contents of the last will are binding, and the terms of that will set out what happens with the deceased’s assets when they die.
However, there are some exceptions to this. Common reasons include concerns that the will is invalid, where the will fails to leave reasonable financial provision for somebody or where the deceased made a promise to somebody during their lifetime which they have not kept.
The usual reasons why a will might be invalid are:-
If any of the above can be proven, a claim can be brought that the will is invalid. If successful, the will is treated as though it did not exist. Instead, the estate will pass in accordance with the previous valid will or – if there is no previous valid will – the intestacy rules.
Sometimes, a will does not make reasonable financial provision for somebody who needs it. For example, I have dealt with cases where long-term cohabitees have been left with nothing, even though they were dependant upon their deceased partner for a home to live in. I have also acted for adult children where their father left them with insufficient provision to provide for their maintenance needs.
In those cases, a claim can be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision to be made from the estate. However, it is important that people act quickly, as there is a tight time limit of 6 months from the date of a Grant of Probate.
It is a classic scenario – a farmer stands with his son or daughter, looking out over the farm, and says “one day, all of this will be yours.”
The child might rely on that promise, giving up other career options and working for free on the farm in the expectation of running the farm themselves one day. When their parent dies, however, there is shock when the farm is given to somebody else.
In such a scenario, it might be possible to bring a claim against the estate for provision to be made for the promise to be fulfilled.
It is sometimes possible to resolve disputes without the need to go to Court. It might be that the parties can resolve their disputes by early negotiation or by engaging in mediation. Mediation is a process where everybody attends on the same day and, with the help of a third party called a “mediator,” they attempt to do a deal on the day.
Costs depend upon each case, and each case has its own unique facts. We can advise as to the anticipated costs and the funding options that are available once we have considered your case. It might be possible to fund a case through any pre-existing insurance policy that you have, or through a no-win, no-fee agreement.
Some claims have very tight time limits. For example, if you wanted to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the deadline is six months from the date of a Grant of Probate. The key message therefore is to act quickly if you are considering a claim.
It is always important to make a will. When making a will you can discuss your situation with a professional adviser who will be able to explain any risks of challenge to your will and advise as to any steps that might be taken to minimise that risk.
In any event, the vast majority of wills are unchallenged. Dealing with the administration of an estate where there is no will is also more costly, and the estate might not pass in the manner that you would want it to.
Wills, and disputes surrounding them, can be daunting if you are unfamiliar with the process or language. If you want to find out more about contesting a will, please get in touch to discuss your situation.