There are several ways in which an individual can look to make a challenge on an Estate; however, this article focuses on the two most common routes clients take. The first route is to challenge the validity of the last Will of the deceased based on the grounds set out below. The second route is to make a claim against the Estate on the basis that the deceased did not make reasonable provision for an eligible beneficiary and should have done so.
Validity of Will
Challenges to Wills are mostly initiated by people who were named as a beneficiary under a previous Will made by the deceased and are subsequently excluded from the last Will of the deceased. There are a number of well-established grounds upon which an individual can seek to argue that the last Will of the deceased is not valid, as set out below.
Failure to properly execute the Will
In order for a Will to be validly executed, the deceased was required to sign the Will in the presence of two adult, independent witnesses. If the Will that is being relied upon appears that it has not been properly executed, it may be deemed invalid.
Undue influence
If, at the time of making the Will, the deceased was pressured or coerced into making their Will in terms contrary to what they intended by another individual, the court may deem that the deceased was unduly influenced (which would have the effect of invalidating the Will).
Fraud or forgery
There are situations in which Wills have been forged on behalf of the deceased which would, of course, render the Will invalid. These claims are less common and can be difficult to evidence; however, if there is a clear discrepancy between the deceased’s handwriting and the signature included within the Will, this may be an indication that the Will being relied upon is not legitimate.
Lack of knowledge and approval
The circumstances surrounding the preparation of the Will may give rise to concerns that the deceased did not know and approve the contents of the Will. For instance, if the Will was prepared by one of the beneficiaries (and the deceased’s instructions were not recorded by way of a solicitor’s firm), the court may take the view that the deceased did not have the requisite knowledge to approve the Will which would render it invalid.
Lack of testamentary capacity
In order to make a valid Will, the deceased must have the capacity to make an informed decision as to how to distribute their Estate in view of their understanding of the assets within their Estate. If the deceased did not have the requisite capacity at the time of making their Will then, subject to having sufficient evidence to demonstrate the lack of capacity, the court may take the view that the Will is not valid.
Failure to make reasonable provision
The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) is a piece of legislation that was introduced to allow eligible beneficiaries to make a claim against an Estate that fails to make reasonable financial provision for them. A claim of this nature can be made whether or not the deceased made a Will.
The potential beneficiaries are limited to the following relations of the deceased:
- Spouse / civil partner
- Former spouse / former civil partner
- Any person residing with the deceased for a period of 2 years immediately prior to the deceased’s death as if that person was a spouse or civil partner of the deceased
- Child
- Any person who was not a child of the deceased who, in relation to any marriage/civil partnership, the deceased stood in the role of parent and was treated as a child of the family by the deceased
- Any person who was being maintained (wholly or partly) by the deceased immediately prior to the deceased’s death
In exercising its discretion pursuant to the Act, the court will take into account numerous factors including the size and nature of the Estate; the financial resources, needs, and disabilities of any applicant or beneficiary of the Estate; and any other information that the court may consider relevant.
The court will consider each matter on its own merits and each case will therefore turn on its specific facts.
We have extensive experience assisting both claimants looking to make a challenge and Executors looking to defend claims against the Estate. For further information, please contact Solicitor Jenna Keir-Kendrew by email at jek@swinburnemaddison.co.uk or by phone at 0191 384 2441.
This article is for general information only. It does not and is not intended to constitute legal or professional advice. The law may have changed since this article was published and we would always recommend that you seek specific advice on any legal issue.
