How Can A Will Be Challenged?

The two most common ways that a will may be challanged are:

1.  A challenge to the validity of a will.

2.  A claim against the estate for provision under the Inheritance Act.

Why might a will be invalid?

There are strict rules about how a will must be made and signed and if those rules are broken, either the whole of the will or part of the will could be invalid. This means that either the whole of the will, or the invalid part, will fail.

A will can also be invalid if the testator (the person who made the will) did not have the mental capacity to do so.   The test for whether someone has mental capacity to make a will is complicated but put simply the person making the will must be able to understand broadly what assets they own and their value, who they should consider including in their will (for example who their close family are) and the effect of the will that they are making.  If it can be proved that when the will was made the testator did not have capacity, the entire will may be invalid and fail.  If you are worried about whether someone has capacity to make a will (or there is any doubt), a medical opinion should be sought at the time that the will is made.  Instructing a solicitor to help draft the will is also important as they will also assess capacity and keep clear notes.

The other way in which a will (or part of a will) might be invalid is if the testator was put under undue influence when they made the will.   In other words, if a will (or a gift within a will) is made because someone (the beneficiary most likely) is applying serious pressure on the testator, such that the testator is no longer able to think or act freely.   Undue influence is difficult to prove and is often caught up in the issue of capacity.

One thing to consider is what will happen if the will (or part of it) is invalid? Broadly speaking, if there was an earlier valid will this will likely stand or if there is no will the rules of intestacy will apply.

What is an inheritance act claim against an estate?

The Inheritance Act provides that certain people have a right to ‘reasonable provision’ under a will.  The Inheritance Act sets out who these people are but the most common people to claim are spouses (including estranged but not divorced), children or long term partners who are financially dependent on the person who has died.  There are specific criteria set out in the Inheritance Act to assess whether or not there is a claim but the way that these criteria are applied by the courts has not always been consistent so there is a lot of case law on the subject, which is complex.  In a nutshell someone bringing a claim must show the will did not make reasonable (or any) provision for them.  They must show that ‘reasonable provision’ is more than they got.   What a successful claim might achieve by way of provision will depend upon the value of the estate and the needs of others included in the will or others bringing a claim against the will.

An Inheritance Act claim can also be bought where there is no will and where the rules of intestacy do not make reasonable provision for the person brining the claim.  The most common example of this is the unmarried partner who is not recognised under the intestacy rules.

If you are concerned about whether a will might be challenged or if you need to challenge a will, contact Anna Neil for further information on.

t. 01823 745777

e. anna.neil@maitlandwalker.com