Every month, more than 13,500 people search in Google for terms relating to challenging Wills. The number of challenges made has grown by 700% over the past five years, according to the Independent. This is due to a number of factors which include:
- Only a third of people have a Will – and without a Will, the rules of intestacy will apply which may leave out key dependants.
- Family structures are becoming increasingly complex with second and third marriages, step children etc.
- People are living longer – consequently more people are losing mental capacity.
- The growth in the property market means estates are bigger (and worth fighting for!)
- A significant number of those who make a Will choose a ‘DIY’ option. These may not be properly executed or may contain ambigious language. With DIY Wills there will also be no notes available as to the person’s mental capacity. See ‘When DIY Wills go wrong‘.
The grounds to challenge a Will
There is a general principle that a testator/testatrix (someone making a Will) can leave their estate to whoever they like. If they do not make a Will, their estate will pass according to the rules of intestacy.
However, aside from these general principles, there may be grounds to claim against the estate in a wide range of circumstances. These include, for example:
- The Deceased did not make reasonable financial provision for you in their Will and you believe that they should have.
- The Deceased did not make a Will and you do not stand to benefit from their estate under the rules of intestacy (you believe that you should do).
- The Deceased made a Will but at the time, you suspect they did not have the required mental capacity.
- The Deceased made a Will but it was not executed in accordance with the proper legal formalities.
- The Deceased made a Will but it contains a mistake or it is open to interpretation.
- The Deceased made a Will but you believe they were unfairly influenced by another person in their decisions.
- A Will has appeared that was apparently made by the Deceased but you believe some fraud may be involved.
- The Deceased signed a Will but you think it is unlikely they knew about or understood the contents.
- The Deceased left you a gift on their death bed but this was not included in their Will (or the rules of intestacy mean you will not get the gift).
- The Deceased owed you money and this was not reflected in their Will (or you will not get the money under the rules of intestacy).
The above examples are not exhaustive but represent the most common reasons why someone might be able to challenge a Will. Most claims are based around an application for reasonable provision under the Inheritance Act or questions over the validity of the Will. You can find out more about contesting a Will here.
Example claims:
- Ilott v Mitson: A mother left her entire £486,000 estate to charity, disinheriting her only daughter who was estranged. The Court awarded £50,000 to the daughter.
- Martin v Williams [2017]: A married couple separated and the husband then purchased a property with a new partner, cohabiting for a number of years. According to his Will, his wife was entitled to his entire residuary estate. His partner made a claim for reasonable financial provision under the Inheritance Act and was granted a life interest in the property.
- Ashkettle v Gwinnett [2013]: A Will was challenged on the basis that (amongst other things) the testatrix did not have testamentary capacity. Although medical evidence showed she had Alzheimer’s, the experts agreed she would have had the capacity to understand the nature and consequences of the act of making a Will. However, they did not agree that she could appreciate the extent of her estate and appreciate the moral claims of those who might reasonably expect to benefit. In this case the Will had been drawn up by a solicitor but he was unable to show that he had formed a proper view on capacity in the absence of his file notes.
How to fund your claim
One of the biggest concerns people have when considering whether to challenge a Will is how to fund their claim. There are a range of funding options which include:
- No win no fee agreements
- Fixed fees – suitable for initial investigation work
- Legal expenses insurance
- After the event insurance
- Privately funded – pay by instalments
- Litigation loans
If you believe you have a claim, we can work with you to find the best funding option.
Steps to take
There are strict time limits for some types of claim so it is essential to get legal advice early on. The first step is to let us know why you think you may have a claim. We will then be able to advise you whether it is worth investigating the matter further. Complete your details below without obligation:
