Contesting a will
When can a will be contested?
A will can be contested if the will is invalid or if a person has not been adequately provided for in the will.
Invalid wills
For a will to be valid a number of requirements must be met. They are as follows:
Capacity
The testator (the person who made the will) must have been capable of making a valid will at the time when the will was made.
To be capable of making a valid will the testator must ordinarily be aged 18 years or over and must be of sound mind, memory and understanding. Essentially, a person must know and appreciate what they are doing when they make a will.
Intention
The testator must have clearly intended to dispose of his or her property, in the manner set out in the will, on his or her death. If the will has been validly executed and the testator was of sound mind when the will was made such intention will normally be assumed.
Undue influence, force and fraud
If a testator is unduly influenced (coerced or pressured) or forced into making the will, a Court may set aside the will in its entirety or in part. Similarly, a Court may set aside a will or part of a will if the execution of a will was obtained by fraud or if it was forged after the person’s death.
Formalities
In the majority of cases the will must be in writing for it to be valid. It must also be signed by or on behalf of the testator, and the signature must be made or acknowledged in the presence of 2 witnesses present at the same time.
Revocation
Normally a will is revoked upon the marriage of the testator or if the testator enters into a civil partnership. A will can also be revoked by a testator executing a later will or codicil or by making a written declaration declaring his or her intention to revoke the will. A will can also be revoked by a testator intentionally destroying the will. Once a will has been revoked it will no longer be valid.
Inadequate provision made in the will
As a general rule a testator is entitled to leave his or her estate to whomever he or she wishes. However, if the will fails to make “reasonable financial provision” for certain classes of people then the Court has the power, under the Inheritance (Provision for Family and Dependants) Act 1975, to ensure that they are provided for.
Who can make an application under the Act?
An application can be made under the Act by the following people if they have not been adequately provided for under the terms of the will:
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a spouse or civil partner of the deceased;
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a former spouse or civil partner of the deceased who has not remarried or entered into a new civil partnership;
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a child of the deceased;
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any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
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any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
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any person who lived in the same household as the deceased as the spouse of the deceased during the whole of the period of two years ending immediately before the date when the deceased died.
What matters will the Court take into account when considering an application made under the Act?
When considering an application made under the Inheritance (Provision for Family and Dependants) Act 1975, the Court will take into account the following matters:
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the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
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the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
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the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
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any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
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the size and nature of the net estate of the deceased;
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any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
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any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
When considering the financial resources of an applicant or beneficiary the Court will take into account their earning capacity and when considering the financial needs of an applicant or beneficiary the Court will take into account their financial obligations and responsibilities.
In the case of claims brought by spouses and civil partners the Court will also take into account the following matters:
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the age of the applicant and the duration of the marriage or civil partnership;
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the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family;
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what provision the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage or civil partnership, instead of being terminated by death, had been terminated by a divorce or dissolution of a civil partnership.
In the case of claims brought by children the Court will also take into account the following matters:
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the manner in which the applicant was being or in which he might expect to be educated or trained;
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In the case of children who are not the deceased’s children:
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whether the deceased had assumed any responsibility for their maintenance and, if so, the extent to which and the basis upon which the deceased assumed that responsibility and the length of time for which the deceased discharged that responsibility;
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whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;
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the liability of any other person to maintain the applicant.
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When should an application be made?
Normally an application under the Inheritance (Provision for Family and Dependants) Act 1975 will need to be made within 6 months of the grant of probate being made.