Challenging a Will

Can I challenge a will that fails to make reasonable provision for me?

It is becoming increasingly common for a dispute over a will or a deceased’s estate to arise, particularly where someone who expected to inherit has been excluded or where the provision made for them is less than they had reasonably hoped to receive.

If there were family tensions, then the contents of the will may not come as a total surprise, but it can still come as a blow to those who are affected, and this may lead to questions about whether there is any way in which the will can be challenged, or its provisions somehow varied.

Apart from bringing a claim to challenge the validity of a will itself, in other cases, where you are the spouse, civil partner or child of the person who has died, or someone who cohabited with them or received financial support, then it may be possible for you to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. 

For this to be possible, you must be able to show that reasonable financial provision for you has not been made in the circumstances that exist.

Your solicitor will be able to advise you on whether a claim may be possible and, where it is, provide support to enable you to secure appropriate financial provision. Ideally this will be through negotiation with all relevant parties but, failing that, via the instigation of legal proceedings in order to obtain an appropriate court order.

Eligibility to make an Inheritance Act claim

To bring a claim under the Inheritance Act, you must be:-

• the spouse or civil partner of the person who has died, or a former spouse or civil partner who has not yet remarried or entered a new civil partnership;
• someone who lived in the same household as the person who has died for at least two years prior to their death and as though you were husband, wife or civil partner;
• the child of the person who has died, or someone they treated as their child; or
• someone who was in receipt of financial support from the person who has died.  

Justification for a claim against the estate of the deceased

When considering the merits of a claim, a range of factors will be considered, including:-   

• the financial resources you have at your disposal or are likely to have in the foreseeable future, together with your current and expected future financial needs;
• the financial resources and needs of other prospective beneficiaries;
• whether you or anyone else with (or claiming to have) inheritance rights suffers from a physical or mental disability;
• whether the deceased person had any sort of obligation or responsibility towards you or any of the other beneficiaries;
• the size and nature of the estate, including the amount of money, property and possessions available for distribution once debts have been settled; and
• any other matters that the court considers relevant, including the nature of your relationship and the way you and anyone else involved in the case have acted.

Where you are making a claim as a spouse or civil partner, or as a former spouse or civil partner, regard will also be had to your age, the duration of your marriage or union, the contribution you have made to your family’s welfare and, if appropriate, what you might have received had you and your loved one divorced or had your civil partnership been dissolved. 

Some of these considerations will also apply where you cohabited.

What does ‘reasonable’ financial provision mean?

What amounts to ‘reasonable’ financial provision will depend on your relationship and which category of claimant you fall.  For spouses and civil partners financial provision is not limited to what is required for ‘maintenance’.

A key part of your lawyer’s role will be to assess the provision that ought reasonably to be made for you and to justify why it is appropriate for you to receive this.  Regard will need to be had to previously decided cases which have parallels with your own and to the best way to achieve the right outcome, having regard to your own position and that of other beneficiaries, who will likely see their own entitlement reduce as a result of the claim you are seeking to make.

Is there a time limit?

To be eligible to make a claim, you will usually need to ensure that your case is started within six months of the date of issue of a grant of representation to the estate that is subject of the claim. After that date it may still be possible to bring a claim but you will have to obtain the court’s permission to apply out of time.

What happens if my claim is successful?

There are a range of possible orders that the court might make, or which your lawyer may be able to negotiate where there is agreement that your claim ought to be allowed.  These may include an order that you receive:-

• a lump sum payment;
• regular payments of a set amount for an agreed period of time;
• rights of ownership over a specific property, or a share in the proceeds of sale where it is agreed or ordered that a property should be sold; or
• rights to occupy a specific property, either indefinitely or until the happening of a certain event.

Contact our experts

At MacDonald Oates LLP, we have a team of experienced lawyers to support you in advancing a claim for reasonable financial provision and who can help you to resolve any dispute that may arise over your entitlement as quickly and smoothly as possible.

We can assist whether you are the person who wishes to pursue a claim, an existing beneficiary who would like to see a claim defended or the executor or administrator of the deceased’s estate who is unsure of where they stand. 

For further details, please contact the Litigation team on 01730 268211 or via email at . 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. Specific advice should always be obtained relating to your own circumstances.