LEGAL CORNER: Concerned about a will? Can you challenge it?
It is a basic principle of English law that individuals are free to dispose of their estate in any way they wish. However, there are a number of ways in which a will can be challenged, or '˜contested'.
Anyone with serious concerns about the terms of another’s will should contact an experienced solicitor as soon as possible, especially because some potential claims must be made within six months of probate being granted.
Under certain circumstances, you or your solicitor can temporarily delay probate by invoking a legal caveat that prevents the grant of probate for six months and can sometimes be extended further.
Most frequently, a challenge to a will is based upon the failure of the deceased to make ‘reasonable financial provision’ for someone who has a right, under the law, to be provided for.
Under the Inheritance (Provision for Family and Dependents) Act 1975, former (if unmarried) and current spouses or civil partners, children, and individuals maintained by the deceased at the time of the death or who had been living for at least two years in the same household as the deceased, may be able to make a claim.
The court will then consider a number of additional factors before making a decision on whether the will should be altered to make reasonable financial provision for the claimant.
Although most challenges to wills are made under the Inheritance (Provision for Family and Dependents) Act 1975, there are other circumstances that could lead to the successful challenge of a will.
For example, the deceased may have been unduly influenced in making the will by someone who then receives an inappropriately large proportion of the estate; at the time the will was drawn up the deceased may have lacked capacity through physical or mental illness; the legal practitioner who drafted the will may have done so negligently, resulting in a loss.
It may be that a specific element of the estate bequeathed by the deceased was held ‘on trust’ for a claimant and therefore is not legally part of the estate and, in some circumstances, promises made by the deceased can be enforced where an individual relied on that promise to their detriment.
In any potential will dispute, the crucial step is always to act quickly by obtaining specialist legal advice – if you feel you may have reason to challenge a will, contact our experienced George Ide team as early as possible for no-obligation initial advice.
Partner, Litigation Department
George Ide, LLP
Solicitors of Chichester and Bognor Regis