When someone dies, the administration of the estate will be dealt with, and the net estate distributed according to the terms of(or under the intestacy rules if there is no valid Will). In recent years, there has been an increasing number of Wills disputes, with the courts having to rule in many cases.
Some disputes involve, for instance, potential beneficiaries who have been unfairly excluded from the Will; whilst other cases arise where a Will has been found to be invalid for some reason. Whatever the issue, there is a tight time limit within which a claim must be made: claims must be made within 6 months of the date the Grant of Probate is obtained.
Anyone who has a beneficial interest, or potential beneficial interest in the deceased’s estate, can contest a Will if they believe they have a valid claim. Typically, those who contest a Will are the surviving spouse, children, cohabitee and other dependents, such as adult children who were being financial supported by the deceased, and children who are treated as a child of the family.
If someone believes the Will is invalid, or believes they have a valid claim against the estate, should seek legal advice as soon as possible. One of the first steps that can be taken to protect their interests is to apply for a ‘caveat’ which prevents the assets of the estate being distributed pending the outcome of the dispute.
The caveat will last for six months, although it can be renewed. Often, the dispute will be resolved before it reaches court.
If an agreement cannot be reached during the caveat stage, and the dispute cannot be resolved, a formal claim may be made to court. Claims against an estate involving a Will typically fall into two categories:
A Will must fulfil certain legal and procedural requirements in order to be legally valid. A Will may, therefore, be invalid for a number of reasons including:
It is for the claimant to prove that the Will is not valid. Strong evidence must be produced to convince the court, on the balance of probabilities, that the Will is invalid. However, note that in the case of a claim based on lack of testamentary capacity – where the claimant has successfully raised a real suspicion that the deceased lacked capacity, it is then for the executors to establish that the deceased did have mental capacity.
If the court decides, on the facts and the evidence, that the Will is invalid, the estate will be administered according to the rules of intestacy – as though the Will never existed.
Where a dependant has not been sufficiently provided for under the terms of the Will, a claim for reasonable financial provision can be made under the Inheritance (Provision for Family and Dependants) Act 1975. A dependent for these purposes is anyone who the deceased was financially maintaining (or had a legal obligation to do so) at the time of death. Usually, dependents are surviving spouses, cohabitees, children or individuals treated as a close family member such as a disabled friend.
The court will consider various factors including their age and any responsibility for young children; the length and nature of the relationship between the claimant and the deceased; their contribution to the family; and what they would have received had they divorced instead of the death occurring. If the court decides reasonable provision was not made, it will then consider what is reasonable provision.
In the case of a successful claim, the court will order what it decides is reasonable provision out of the estate. This will be awarded by way of a lump sum or maintenance payments, depending on the claimant’s needs, and size of the estate and other relevant factors.
In recent times, the courts have shown a greater willingness to allow claims, even in cases where the claimant was not being financially support by the deceased at the date of death. For this reason, it is critical to take legal advice if you consider you have even a small chance of making a successful claim against an estate.
There are a number of other scenarios where a Will can be disputed, including:
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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