How can I contest a Will?
This depends on why you are disputing the Will. You can either challenge the validity of the Will or challenge the terms of the Will by making a claim under “The Inheritance (Provision for Family and Dependents) Act 1975”.
On what grounds can the validity of a Will be challenged?
- To be valid a Will must have been properly executed. It must be in writing and signed by the person making the Will. This must be done in the presence of two witnesses who must both be present at the time the Will is signed, and each witness must sign in the presence of the person making the Will. If these formalities are not met then the Will is invalid.
- The person making the Will must have the mental capacity to do so. In general terms this means understanding the nature and effect of the document that is being signed, understanding what he or she has to leave in the Will and being aware of the people he or she should consider when making the Will.
- There must have been no “undue influence” exerted on the person making the Will in order to benefit a particular individual or individuals.
What should I do if I want to challenge the validity of a Will?
You need to act immediately. The first step is usually to register a “Caveat” at the Probate Registry to prevent a Grant of Probate being taken out while the matter is being investigated. Obviously the matter can be investigated after the Grant has been taken out, but the situation will be more difficult and urgent.
If you suspect that a Will is not valid then you should take legal advice immediately to protect your position. At Macks we are happy to provide free initial advice to let you know whether or not you may have grounds to challenge a Will. Contact Macks on 0800 980 9390 for your free initial consultation.
What do I do if I think the terms of a Will are unfair or I’m not getting what I think I should get because the person who died did not leave a Will?
If you accept that a Will is valid (or there was no Will) but do not feel that you are getting what you believe you should be entitled to, then it may be possible to bring a claim under “The Inheritance (Provision for Family and Dependents) Act 1975”.
Claims under the Inheritance Act often arise when the rules of Intestacy (i.e. the rules which decide who gets what if there is no Will), or the effect of a valid Will (i.e. who gets what under the terms of the Will) are considered unfair by one or more of the beneficiaries, or people who think they should have been beneficiaries.
If there is a valid Will they must show that the Will of the person who died did not make “reasonable financial provision” for them. In the same way, if the estate is being distributed under the rules of Intestacy, they must show how the effect of the intestacy rules fails to make “reasonable financial provision” for them.
If you believe that you may have a claim then you should seek advice quickly. Any claim must be made within six months of the date of the Grant of Probate or Administration.
Who can claim?
Categories of potential claimants are:
- The spouse or civil partner of the person who has died.
- A former spouse or civil partner of the person who has died (providing they have not formed a new marriage or civil partnership).
- A cohabitant of the person who has died.
- A child of the person who has died. This includes adult children.
- Any person who, as a result of a marriage or civil partnership involving the person who has died, was treated by the person who died as a child of the family, in relation to that marriage or civil partnership.
- Any person who was, immediately before the death, being maintained, either wholly or partly, by the person who has died.