Wills & Probate

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Frequently Asked Questions

© InHouse Wills

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Challenging a Will

Typically there three main ways in which the passing of an inheritance can be challenged and we can arrange help to make the claim or to defend against it:

1. The Will was invalid because it was not made correctly, or
2. It was a valid Will, but did not provide for potential beneficiaries appropriately, or
3. The person had made a promise in their lifetime which they didn’t honour in their Will

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 must have mental capacity (as judged by the “Banks v Goodfellow” test) and must not be subject to undue pressure or influence. If it seems a Will might be invalid then anyone can lodge a caveat at the probate registry, to delay any grant of probate until the disputed Will has been checked properly.

Claiming for provision from an estate

A Will could be legally valid but still not make appropriate provision for key people. This is governed by the Inheritance (Provision for Family and Dependants) Act 1975. Not just anyone can claim; it is limited to those specified in the law, which are

• 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 will be successful. Indeed usually a judge is not keen to alter the provisions of a Will. Each case is treated on its own merits and takes into account 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 share.

The case of Ilott v Mitson went to the Court of Appeal in 2015 and some have said the result means there is no point in cutting out a child from your Will. However, that is wrong. In practice, even after the revised ruling the daughter received only a portion of the estate, with the majority still going to the testator’s intended charities. The case emphasised that in each situation the judge looks at the particular circumstances and makes an individual ruling.

Broken Promise

Occasionally someone promises to make a gift in their Will, but then does not actually do it. If that broken promise makes a significant impact to someone then they make be able to make a claim of “proprietory estoppel” to enforce the promise. It’s not easy to make a successful claim, because you have to be able to prove that a promise was made, that you relied on that promise and that you now suffer a loss because of the breach of promise.

Avoiding a Will being Challenged

If you are thinking of leaving someone out of a Will then take professional advice, so that you can understand the likelihood of your wishes being respected. 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.

Of course, it is also important to ensure that the Will is made properly. Having a specialist Will writer involved means that the proper procedures will be followed, minimising the chances of a Will being ruled as invalid. There will also be notes kept, to demonstrate to the court that you knew what you were doing and were properly advised.

If you find yourself acting as executor to a Will that someone else is challenging, then our specialist colleagues can deal with it for you. They can advise as to whether the claim has any merit, perhaps negotiate with the claimant to reach a settlement agreeable to everyone, or if really necessary they can defend the Will in court if it goes that far.

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)