Testamentary freedom, or the ability to leave one’s worldly wealth to whomever we choose, is the cornerstone of succession law in England and Wales. However, there are certain circumstances, even where a deceased has documented their final wishes within a Last Will and Testament, that a Will can be contested. Below we look at different contentious probate disputes and the basis upon which contesting a Will can potentially succeed.
On what basis can a Will be contested?
Contentious probate cases can cover a range of possible scenarios, although one of the most common types of claim, known as an Inheritance Act claim, is where adequate provision has not been made within a deceased’s Will for either a close relative or anyone else who was financially dependent on the deceased immediately before they died.
Under the Inheritance (Provision for Family and Dependants) Act 1975, a potential claim can be made to the court to vary the distribution of the deceased’s estate by certain categories of people, so long as a claim is issued within 6 months of the date that probate is granted. The potential categories of Claimant can include the deceased’s spouse or civil partner; their former spouse or civil partner, provided they have not re-married; any cohabiting partner, provided they lived with the deceased for a period of 2 years prior to their death; and any child of the deceased, including both minors and adults, as well as adopted and step-children. A Claimant can also include any person who immediately before the deceased passed away was being maintained, either wholly or partly, by that person.
Subject to the Claimant being able to show that they were financially dependent on the deceased and that adequate provision has not been made for them on death, the 1975 Act gives the court a relatively wide discretion to make an order to vary the distribution of the deceased’s estate by way of a single lump sum, regular payments or transfer of property.
In some cases, it may also be possible to contest the validity of the Will itself. This could be on the basis of testamentary capacity, where the deceased was arguably not of sound mind when they signed their Will. Additionally, it could be argued that the deceased was coerced into making their Will, or that the Will has been forged, or even that the Will has been improperly executed, such as not being witnessed correctly. In these types of cases, unless the deceased had in place a previous and valid Will, the estate would be distributed in accordance with the rules of intestacy, as if the deceased died without making a Will at all.
How should you go about contesting a Will?
Contesting a Will can be a complex and difficult process, especially at a time when you already feel overwhelmed whilst still grieving the loss of a loved one. However, with the right legal advice and representation, your solicitor can help you to build a strong case, with sufficient evidence in support to succeed. The most important thing in the context of contentious probate claims, is seeking expert assistance as soon as possible, ideally prior to distribution of the deceased’s estate to the beneficiaries under the Last Will and Testament.
By seeking immediate expert advice over any concerns as to the validity of a Will, or if you feel that you have not been adequately provided for by the deceased, you can explore the possible options available to you and make an informed decision as to how best to proceed.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions. Before acting on any of the information contained herein, expert advice should be sought.