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
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,
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.
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)