Wills & Probate
established 2003
© InHouse Wills
Challenging a Will
Typically there two ways in which a Will is challenged
- It was not made correctly, or
- It was a valid Will, but did not provide for potential beneficiaries appropriately
Invalid Will
When making a Will there are a variety of formalities that need to be observed, such as following the correct signing and witnessing procedures. The person making the Will has to understand what they are doing (as judged by the “Banks v Goodfellow” test) and must not be subject to undue pressure or influence. If it is believed that a Will might be invalid then anyone can lodge a caveat with the probate registry and can challenge the Will so that it is not given a grant of probate.
Claiming for provision from an estate
A Will could be legally valid, but might not make appropriate provision for certain people. This is governed by the Inheritance (Provision for Family and Dependants) Act 1975. Not just anyone can claim; it is limited to those covered by the legislation, which is
- Spouse / civil partner
- Former spouse / civil partner
- Person living as spouse / civil partner
- Child of the family
- Person treated as child of the family
- Person being maintained by the deceased
Just because someone is permitted to make a claim, it does not mean that they would be successful and typically a judge is not keen to alter the provisions in a Will. Each case is treated on its own merits and takes into account many factors such as the size of the estate, the financial circumstances of the claimant and also those of the existing beneficiaries. It is highly unlikely that a claimant would be given the whole estate; typically if a change is made then it is just to give them a part of the estate.
The case of Ilott v Mitson went to the Court of Appeal in 2015 and has been touted as meaning that there is no point in cutting out a child from your Will. However, that just illustrates how the media like to hype a situation. In practice, even after the revised ruling the daughter still only received a minority of the estate, with the majority going to the testator’s intended charities. However, what it did emphasise is that in each situation the judge looks at the individual circumstance and makes an individual ruling.
If you are thinking of leaving someone out of a Will then take some advice, so that you can understand the likelihood of your wishes being respected. For example, if you have promised to leave something to a person (whether that is an explicit promise or more by your general actions) then that person could ask for the provisions from your Will to be altered. However, you might be more certain of having your wishes respected if you have placed your assets into a Lifetime Trust. InHouse Wills can give you personal guidance for your situation.
Challenging A Will
Anyone can challenge the validity of a Will, but only certain people can ask to be given more from an estate (and even then, a judge might disagree)