Have you ever been left out of a Will and thought that you deserved something from the estate? Do you think that family members have acted unfairly, or that a step-parent has influenced your parent? do you think that something suspicious may have happened to a parent’s Will? This article discusses the grounds for challenging a Will in the UK, and what specific factors contribute to a successfully contesting a Will.
We are often asked the question “can your Wills be challenged?” Keep in mind that any Will can be challenged. If a loved ones did not receive what they were expecting from a Will, then they are perfectly entitled to challenge the Will. Typically this would be done through a Solicitor.
But very quickly, the solicitor will be able to tell their client whether they have any chance of success.
There are very specific grounds for a Will to be successfully contested, and we will describe these in this article. Let us start with what will not likely result in a successful challenge.
Reasons for challenging a Will that are likely to be unsuccessful
You have been treated unfairly
This is usually a situation that arises between siblings. A recent survey revealed that people are actually increasingly treating their children unequally in their Wills, with a view to treating them more fairly.
The number has doubled in the last few years with close to 40 percent of people with a Will leaving unequal amounts to their children. There are a couple of reasons for this; clearly if you’ve given one child a lot more during their lifetime than another, it may seem fair to address this inequality in the Will. But what about if one child has worked hard and been more financially successful than the other; should the less financially secure child receive more? what if one child has helped you much more as a senior, should that child receive a greater reward for this? It’s a very difficult question.
But if your sibling received 80 percent of the estate, and you received 20 percent of the estate. This alone is not grounds for successfully challenging a Will.
You were promised something
Verbal promises count for nothing in the World of inheritances. It is very common for somebody to express an intention “when I’m gone, I want you to have my grandmother’s wedding ring”. Wishes like this tend to be expressed over and over, at every family gathering.
But then the Will simply leaves the entire estate to a single beneficiary and there is no mention of this promised item.
You could argue that although the Will states that everything will go to a spouse, there was a verbal wish that made an exception of a particular cherished item.
This verbal promise means nothing. If it’s not in the Will, you have no grounds for challenging the Will in an attempt to receive that promised item.
Your stepmother has received everything
Probably the single biggest source of family acrimony.
The mother dies, leaving the father with the entire estate. They have two children. Then, at eighty years of age, the father remarries. The children find it more difficult to take because the new bride is significant younger than the father. There is a suspicion that the new relationship is an attempt to receive something from the estate, and sure enough, the father dies and his new Will has left everything to the stepmother. The children have received nothing.
This happened (in reverse) with Lynda Bellingham’s estate; the new husband received the £5M inheritance and went on to live a lavish lifestyle. The children receives relatively small amounts from the estate.
We also famously saw this with Anna Nicole Smith who married the billionaire J. Howard Marshall when he was 88 and she was 2. He died 14 months later leaving an estate worth well over a billion pounds.
This alone is no grounds for a successful challenge to a Will. The father may legitimately feel that his children are no longer active in his life, they are not caring for him in his senior years, and his new wife has been an angel to him.
However, read on through the article and there may be other factors involved that could make it worthwhile challenging this Will.
The family has been disinherited completely
It is not uncommon for somebody to update their Will in their senior years and completely disinherit their family. Often this results in an entire estate being left to a charity.
Again, anybody has a complete right to do this, and this alone would not be grounds for successfully challenging a Will.
What are the grounds for successfully challenging a Will?
There are five specific reasons for challenging a Will that if proven, give you a good chance of success.
1. The person making the Will was not fully aware of what they were doing
The legal term for this is that they “lacked testamentary capacity”. The colloquial term is that they were not of “sound mind”. The person writing the Will should understand that they are indeed preparing a Will, and be fully aware of the content. They should be aware of their assets and understand their value. They should also be fully aware of their family relationships, and the Will should reflect this. If a Will says something like “leave everything to my only child Jonathan” when the testator actually has 5 children, it would suggest that there was a loss of mental capacity.
Although mental capacity is usually associated with seniors, age alone would not be grounds for a challenge. There are many people in their 90’s and beyond with the mental capacity to prepare a Will.
Conversely, there have been arguments that a person updating a Will moments before dying by suicide did not have the mental capacity to prepare that Will.
There has to be a demonstration of the loss of mental capacity. We often read of a person updating their Will in their 90’s or later leaving everything to their medical staff instead of their family. This happened in the £250 Million estate of Huguette Marcelle Clark who updated her Will as a 95 year old leaving everything to her family, but then updated it again 6 weeks later leaving most of her assets to charity, and a £20Million bequest to her nurse. The family challenged the Will and a judge’s ruling reduced the nurse’s bequest to….errr…zero.
2. Somebody pressures the person writing the Will to distribute their estate in a particular way
There are two flavours of this; signing under duress – specifically related to threatening the person writing the Will with physical harm. A closely related situation is “undue influence” where a trusted person known to the person writing the Will works to influence the distribution of the estate. Indicators of this would include a beneficiary being present at the signing of the document, caregivers being included as beneficiaries, witnesses being close friends of the main beneficiary. Essentially, the end-product is a Will that does not reflect the person’s true wishes.
The example above of the stepmother receiving the estate would not be grounds for successfully challenging a Will, but certainly a person ingratiating themselves with a senior and receiving a large inheritance as a result would suggest undue influence.
3. Challenging a Will on the basis of Fraud
This most commonly takes the form of making changes to the document (inserting or replacing pages) or forging signatures. This is extremely common for handwritten Wills and particularly handwritten amendments to Wills. But it can also include a testator making changes to a Will based on misinformation presented to them.
The most recent example in the news of a signature literally cut and pasted (with scissors and glue) onto a Will. This forgery resulted in a lengthy prison sentence.
4. Incorrect procedures
The Will must be signed in the presence of two independent witnesses who have nothing to gain from the contents of the Will. The witnesses must be adults of sound mind and not beneficiaries or the spouse of a beneficiary. If a Will has not been signed correctly, then it can be challenged.
Bear in mind that having a beneficiary sign as a witness does not invalidate the entire Will, but the witness cannot inherit. Any reference to the witness as a beneficiary would be ignored (unless undue influence was established).
5. Inadequate provision for dependents
There is a common misconception that you can distribute your estate any way you wish and that you have complete “testamentary freedom” to do things like disinherit your spouse. However, The Inheritance (Provision for Family and Dependants) Act 1975 allows the close family and dependants of the deceased to apply to court for a share of his or her estate, on the basis that the Will does not make ‘reasonable financial provision’ for that relative or dependant (most commonly, a spouse and child). The only people who can stake a claim through this law are;
- spouses or civil partners of the deceased;
- former spouses or civil partners of the deceased who have not re-married;
- any child of the deceased;
- any person who was treated as a child of the family;
- a person who was maintained by the deceased;
- a cohabitant (for two years or more) of the deceased.
And even then, they must demonstrate that they were unfairly treated in the Will. Ultimately a judge will determine what is reasonable.
Recent challenges in the news
Recently we have seen challenges to the Wills coming from dependents, for example, the estate of George Michael.
We have seen stepfathers sued by children, for example, the estate of Lynda Bellingham.
But there are countless examples of attempted forgeries of Wills.
How long do I have to challenge a Will?
We often hear from people telling us that their father died two years ago, and they haven’t heard anything from anybody. But they were expecting something from the Will.
If you do suspect that something isn’t quite right, it is important to move fast. There is a six month deadline (from the date of the grant of probate) for issuing court proceedings under The Inheritance (Provision for Family and Dependants) Act 1975.
Writing your own Will does not make it more vulnerable to a challenge
Writing your own Will through LegalWills.co.uk does not make your Will any more likely to be challenged, and certainly cannot be used as the basis for a challenge. As long as the document is signed and witnessed appropriately, then it is a legal Last Will and Testament. Be aware though, that if you are planning to disinherit close family members, they will have every legal right to challenge the Will. A judge will decide whether or not there are legitimate grounds for the challenge.
Tim Hewson is one of the founders of LegalWills.co.uk.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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