Challenging any will can be costly and time-consuming, although it is becoming more commonplace. It is thought that this is partly due to the rising number of people who draft their own wills. Without proper legal advice many people make elementary mistakes e.g. will is not properly signed and witnessed which may mean the will is more likely to be challenged by other potential beneficiaries at a later date. Although DIY wills may be suitable for those with simple affairs, anyone with a larger estate or more complicated finances (for example those with children from a previous marriage or whose estate is likely to fall into the inheritance tax net) should seek professional advice.
In the UK, people are largely free to leave their property, money and assets to whoever they like, but there are some restrictions. These are by no means as strict as in much of continental Europe, where laws of succession mean it is virtually impossible for French parents, for example, to disinherit a wayward son. However, under the Inheritance Act of 1975, a will can be contested if you fail to make reasonable provision for spouses and dependent children. Civil partners, former spouses and even cohabitees (provided they have lived together for at least two years) could also make a potential claim against a Will.
The Inheritance Act 1975 allows family members to claim part of an estate – which may lead to other beneficiaries receiving less. But even a successful claim does not mean the terms of the will are totally disregarded. Those mentioned in the will – be they friends or even charities are still likely to get a reasonable payout.
However, there are circumstances when you can apply for a court to set aside a will completely:
– was the will been properly executed?
– did the person making the will have capacity to do so i.e. did they fully understand the nature of the will and have a clear grasp of the value of any property and assets they were disposing of and were they able to understand any possible claims
– a will can also be challenged if it is thought “undue influence” was placed on someone to leave certain assets to a beneficiary.
However people are perfectly entitled to disinherit friends and family members and leave their money elsewhere. But in cases where nothing has been left to surviving family members, solicitors should ask pertinent questions and provide evidence that this is a rational and considered decision, so the will cannot be challenged at a later date.
How to mount your challenge
If you think you have grounds to contest a will, then you should act sooner rather than later and ideally before probate is granted. The longer you take to lodge an action, the weaker your case will be when it comes to court. Initially the costs are relatively low. If you feel you have cause to challenge a will, seek specialist legal advice as soon as possible. You can then lodge a “caveat” at the Probate Registry. This costs £15 and means Probate cannot be obtained without notice to the person who has lodged the caveat.
If the Executors do not think there are grounds for challenging a will, they can issue a document known as a “warning”. This sets out their reasons for objecting to any claim. Then the person contesting the will, can determine whether to proceed further. At this point they lodge an “appearance” – another short document.
Legal action can slow down the administration of an Estate and can be costly for all sides. One option to settle any dispute is to employ professional mediators who can hopefully find a compromise which is acceptable to both sides. If this is not successful, the formal procedure of the courts still remains available.
We have specialist Solicitors who can advise on the merits of challenging a Will or can advise Executors if a Will is challenged – please contact us on (01267) 237441.
However such claims also highlight the need to have your will correctly drafted and executed to avoid possible claims in the future. Our specialist Solicitors can offer fixed fees for preparing Wills and can be contacted on (01267) 237441.