Can someone challenge my Will?

Family members often grieve in different ways and losing a loved one can trigger the emergence of past family difficulties and sibling rivalries. What may have been a relatively straight forward Will can end up with the administration of an estate becoming a bit of a battleground.

Very few families have straightforward circumstances. Some parents divorce and remarry, some children or grandchildren become estranged, and sometimes parents do not get on well with their children’s spouses or partners.

When making your Will you may have concerns about how certain family members may react or behave. There may be certain children of yours or family members whom you do not want to inherit. How do you safeguard against someone challenging your Will?

This area of law is becoming increasingly litigious and we are seeing an increase in people seeking advice in relation to challenging a Will. In an attempt to safeguard against this, Wills are becoming more and more complicated. Whilst in the past, a homemade Will may have been sufficient, when we now take instructions for a Will great care has to be taken to ensure that the Will is as ‘water tight’ as possible.

A Will can be challenged in one or more of the following ways:

1. Not being drawn up as required by law
2. Lack of capacity
3. Lack of knowledge
4. Undue influence
5. The Inheritance (Provision for Family and Dependents) Act 1975

Not being drawn up as required by law:/h4>

The Wills Act requires a Will to be drawn up in an appropriate form and signed and witnessed correctly. It is always surprising how many homemade Wills we come across which have not been witnessed properly, are undated, or which may not meet the standard of an appropriate form. Usually, the Court will assist in any way possible to ensure that the Will can be proved as valid, but what saving may have been made in making a homemade Will may create uncertainty for the administration of an estate and additional legal fees incurred when seeking to prove the Will as valid in Court.

Lack of capacity, lack of knowledge and/ or undue influence:

The recent case of Wharton v Bancoft and Others [2011] highlights the importance of careful instructions being taken by an independent professional. In this case the testator had made a Will in contemplation of his marriage to his long term partner, whom he later married shortly before his death. His children, two from an earlier marriage and one from an extra marital relationship, sought to challenge the Will on the grounds of lack of capacity, lack of knowledge and undue influence. This challenge was unsuccessful, it seems partly owing to the careful instructions and detailed notes taken by the solicitor who prepared the Will; who was able to verify that the testator had the relevant mental capacity to provide instructions for a Will, understood the terms of the Will that had been drafted, and had not been coerced into making this Will by his wife.

Inheritance (Provision for Family and Dependents) Act 1975:

A person can make a claim against an estate for ‘reasonable financial provision’ if they have not been provided for under the terms of a Will, or if the provision left for them is considered to be insufficient. They will have to show eligibility for making a claim. Potential claimants can be a spouse, ex spouse, a child or children, a child who was treated as a child of the family, or a dependent.

Many have said that the recent case of Ilott v. Mitson [2011] may result in an increase in claims made by aggrieved family members. In this case the testatrix left her entire estate to charity. The last time she had seen her daughter was apparently over 17 years ago when her daughter had said that she wished to have no further contact. When the testatrix passed away her daughter claimed that she was entitled to reasonable financial provision from her mother’s estate and was awarded a settlement.

In light of this case some will ask why bother making a Will? If drafted correctly a Will details a person’s wishes clearly and unambiguously. If the testatrix had not made a Will, then all of her estate would have passed to her daughter under the Intestacy Rules. Because she had made a Will, and great care was taken in the preparation of that Will to show the history and relationship between mother and daughter and the fact that the testatrix had been consistent in her instructions over the years, then her daughter was only able to claim a proportion of the estate.

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For expert advice, please contact a member of our Probate teams in Halifax, Brighouse or Huddersfield.