Challenging a Will

Protecting a Will

Freedom of testamentary disposition has long been a central pillar of the English law of succession. If you are of sound mind, are aware of and understand what you are signing and do so without influence or under duress, then you can dispose of your estate as you wish.

This is subject to the overriding provisions of the Inheritance (Provision for Family & Dependants) Act 1975, which applies to the estates of those who die domiciled in the UK.

The Act identifies a class of protected persons who may have grounds to contest a will and be able to claim reasonable provision if the impact of a contested Will, intestacy or the law of survivorship fails to achieve this.

These include a surviving spouse, a former spouse, a child, any person treated by the deceased as a child of the family, those who were maintained by the deceased immediately before their death and, since 1 January 1996, those who were living under the same roof as husband and wife for a period of two years immediately prior to the death.

Claims under the Inheritance Act 1975 by a surviving spouse generally extend to such provision as might have been made had the marriage ended not on death but in divorce; other claims are for such provision as is reasonable for maintenance. In short, there are many reasons a person may wish to challenge a Will, or believe they have the grounds to contest a Will.

So, can you ensure that your Will is not going to be subject to challenge after your death?

First and foremost, a Will must meet a number of requirements. It will need to be signed in the presence of two witnesses who must both be present at the time. A professionally drawn Will will always contain evidence of compliance with this requirement and this creates a presumption of validity at this basic level. Those taking instructions will also satisfy themselves as to capacity and, if there is any doubt, will seek a second opinion from the medical profession. Confirmation that these steps were taken prior to the execution of the Will will reinforce prospects of the Will surviving any challenge post death.

Equally, a statement (either in or ancillary to a Will) explaining the reasons for its contents and the absence of any provision for a particular potential beneficiary can serve as a first line of defence to a prospective claim under the Inheritance Act 1975 challenging a Will, as well as providing evidence of any lifetime gifting which might have made further provision on death unnecessary or inappropriate.

So far, so good, one might think.

Experience suggests otherwise…

The increase in the value of estates has created incentives to contest or challenge a Will which, while such claims might only be nuisance value, can nonetheless result in a worthwhile settlement as those affected seek to avoid the delay and expense of defending a claim. Forgery and fraud are not uncommon. It is not unheard of for signatures on Wills to be applied falsely and in circumstances where the purported testator is oblivious to what is being done. It is also suspected that Wills which may be unpalatable to those adversely affected are simply destroyed and their provisions replaced either by the intestacy rules or a more favourable earlier Will.

Simple precautions must include:

• Instructing an experienced contentious probate solicitor to prepare what is one of the more important documents you will ever sign;
• Making sure the contentious probate lawyer keeps a detailed note of the points discussed. Do not be offended if there is any discussion about capacity or a suggestion of a second opinion – this is being done for your protection;
• Ensuring that the original Will is kept under lock and key, preferably by the solicitor who drafted it and keep it under review;
• Developing a relationship with your contentious probate solicitor so that he or she is aware of your circumstances and priorities and can provide answers to any questions which arise when the Will is put into effect – or challenged;
• Keeping any copy of your Will confidential and avoiding discussing it – even with those who stand to benefit. It is a private document and should remain so in your lifetime.

Challenging a Will

Experience of how Wills should be drawn up and applied also provides a basis for knowing when and how to contest or challenge a Will.

If you have come to expect to inherit and, for no obvious reason and apparently through no fault of your own, you do not, it is perfectly possible that you have lost out as a result of the activities of those who have procured a larger share of the estate at your expense. Wills executed late in life which contain unexpected provisions will often attract the Court’s suspicion if the circumstances in which they were executed are properly explored.

You may have maintained a close relationship with a relative who in turn has been subjected to a constant stream of false accusations about you, such that he or she starts to believe them to be true. They may then give instructions for a Will to be drawn up, reflecting the false picture which has emerged. Those instructions, taken in good faith, can very easily result in a Will which even the professional person who drafted it believes represents an accurate and sincere reflection of the client’s wishes. Such a Will could very will inspire claims under the Inheritance Act 1975 led by those who believe they have grounds to contest a Will in the above circumstances.

So do not take anything at face value. If it seems wrong, then there is a distinct possibility that it is and you should seek advice on what steps are available to right a wrong which will otherwise not go remedied and will impact severely on you and your family in the years to come. You may have the grounds to contest a Will and, if so, our contentious probate solicitors can help you with challenging a Will.

If you fall within the class of persons protected by the Inheritance Act 1975 and do not believe that reasonable provision has been made for you, do not ignore the opportunity of considering a claim.

The concept of a claim under the Inheritance Act 1975 is there for your protection and confers rights which will secure you reasonable provision if the circumstances justify it. Very few such cases lead to trial and the parties are under an obligation to explore opportunities to reach settlement either informally or by way of formal mediation so the daunting prospect of a lengthy and potentially expensive process should not deter you from seeking advice from a contentious probate solicitor in relation to a contested Will.