Disputes about an estate often involve a lot of very strong emotions.
The disputes themselves can arise in a number of ways. For example, a will may be disputed because it was not properly executed, or because the mental capacity of the deceased is questioned, or an allegation of undue influence is made.
Whether or not there is a will, a claim might be made against an estate by a surviving family member or someone who was dependent upon the deceased, if they believe the will and/or the law of intestacy does not provide adequate financial provision for them.
Claims can also arise as a result of the way an estate is administered. For example, beneficiaries nay be unhappy with the actions or costs of executors or trustees. It may come to light that the Will has been negligently drafted.
At what can often be a very difficult time for all those involved, clear, common sense advice and objective support can help resolve any differences, ensure the proper distribution of an estate and minimise costs.
So please, WATCH OUR VIDEO and then contact a member of our team.
There are number of different grounds for contesting the validity of a Will:
We will explore the elements of each possible ground for a probate claim below.
What is a valid Will?
For a Will to be valid, it must comply with the requirements set out in the Wills Act 1837(“WA 1837). In summary, a Will must be:
There are some exceptions to these rules:
Invalid Execution of the Will
The first possible ground to challenge the validity of a will is ‘want of due execution of the Will’. If any of the legal requirements set out above are not satisfied or in doubt; for example, the testator did not sign the Will in the presence of witnesses.
A court will generally presume that the Will has been executed in compliance with the legal requirements and the burden of proof rests strongly with those attempting to challenge the Will.
Testator’s Mental Capacity
If you believe that the testator was not of sound mind when making their Will, you may be able to contest the validity of the Will on the basis of Mental Capacity.
When someone writes a Will, they must have sufficient mental capacity to do so. As many people choose to make or change their Will later in their lives, their capacity may be affected by mental health conditions such as dementia.
Regardless of their age, people may also lose their mental capacity due to a long-term mental illness or brain injury.
Claims on this ground will be examined according to the test given in the case of Banks v Goodfellow (1870), which is as follows:
A person writing a Will should
For a successful claim based on the testator’s mental capacity, like all claims contesting the validity of a Will, strong evidence in support is essential. This might include medical records, or statements from family and friends of the testator who would be able to explain his/her state of mind when the Will was signed.
Lack of knowledge and approval
If a Will has been properly executed and there is enough evidence that the testator had capacity, a court will presume that the testator had a full knowledge of the Will’s contents and approved them.
This presumption will not automatically apply where the testator cannot read, speak or write. In such circumstances, evidence that the testator has understood the content of their Will must be provided.
Otherwise, the presumption can be overturned by a court if circumstances surrounding the preparation and execution of the will are suspicious. For example:
Undue Influence
Another ground to challenge the validity of a Will is Undue Influence. A claim based on Undue Influence will need to establish that the testator of a Will was coerced by another into changing their Will to benefit the coercive party or another person.
In the case of Re Ho Chau Ying Chin [2019] EWHC 523 (Ch) the Will of a mother, was contested by three of five daughters, who had been disinherited in favour of their only brother.
Ho Chin had written her Will in 2009, stating she wished to split her estate equally between all her children. She had also written a letter saying that she “had always been very fair to all of her children”. Following a stroke, she became dependent on her husband, who held the traditional view that his son alone, should receive an inheritance. In 2011, Ho Chin executed a new Will leaving the majority of her estate to her son.
In 2015, after Ho Chin’s death, three of her daughters challenged the validity of their mother’s Will. The court found that Ho chin had been unduly pressured to change her Will having been worn down over the years by her husband.
The serious nature of the allegations involved in contesting a Will on the grounds of Undue Influence mean that strong, compelling evidence to support the claim is required. This is notoriously difficult because the primary witness – the deceased – is unable to assist the court and coercion will often have only taken plane in private.
However, as in the case of Schrader v Schrader (2013), the Court will rely on circumstantial evidence and the quality of the evidence available, when making a decision.
In the case of Schrader v Schrader (2013), Mrs Schrader had two sons. She left the main asset of her estate to only one of her sons (“A”) in her last Will. In a preceding Will, she had divided her estate between her two sons equally.
The court concluded that A had unduly influenced Mrs Schrader to change her Will, despite the absence of any evidence of coercion. The court considered A’s forceful personality and his involvement in the preparation of the Will as sufficient evidence to support its decision
It is worth noting that Undue Influence is distinct from ‘mere persuasion’. For example, someone consistently talking about imminent insolvency and the need to receive funds from an estate to pay off their debts would not amount to Undue Influence.
Fraud and Forgery
A claim that a will is invalid can be based on Fraud or Forgery. Fraud involves dishonesty and deception deliberately used for personal benefit. For example,
Forgery occurs when a testator’s will, or the testator’s signature, has been written by an imposer posing as the testator.
In such circumstances, the instruction of a specialist handwriting expert will be required to obtain a report as to whether, in their professional opinion, the will and/or the signature is the testator’s.
If the Will is held to be invalid
If the validity of a Will is successfully contested and the court confirms the Will is invalid, the estate will instead be dealt with under any earlier will of the testator. If there is no previous Will, the estate will be distributed according to the Intestacy Rules.
What are the Intestacy Rules?
If a family member has died and they didn’t have a valid Will, their estate will be distributed according to the Intestacy Rules (“the Rules”).
The deceased’s estate will be divided in strict compliance with the Rules, regardless of what the deceased’s intentions were.
The order of entitlement under the Rules is set out in the Administration of Estate 1925, as recently amended by Inheritance and Trustees’ Powers Act 2014.
The Rules may also come into play in cases of partial intestacy This is where there is a valid Will but it fails to dispose of the entire estate. For example, one or more of the beneficiaries has died during the testator’s lifetime but the testator has not changed his/her Will. In such circumstances, the part of the estate allocated to the deceased beneficiary falls into intestacy and will be distributed according to the Rules.
Please find below a chart showing the Rules:
Notes:
Legally adopted children would be treated in the same way as biological children
If the Deceased died on or after 1 October 2014 but before 6 February 2020, references to £270,000 shall instead be £250,000.
The fixed net sum is known as statutory legacy which is subject to be reviewed every 5 years.
You can also check your entitlement under the Intestacy Rules on the government website:
In certain respects, it may seem that the effect of the Rules is unfair.
Deceased’s wishes overridden by the Rules
If the deceased did not set out their wishes for their estate in a will the Rules will prevail, no matter what those wishes were:
Case Study
Michael died unexpectedly at the age of 68. He had divorced and remarried around ten years before. Prior to his death, his second marriage had become strained, but Michael and his second wife were still married when he died.
Having inherited a substantial amount from his own family, Michael told friends on a number of occasions that he wanted his daughter to inherit what he had. Although Michael’s friends said they were prepared to swear affidavits as to his intentions, because Peter did not have a valid will his estate was divided according to the Rules. This meant that his second wife took the statutory legacy of £270,000, all of chattels and half of the remainder of his estate.
No provision for co-habitees or “Common law” spouses
As seen in the above chart, a partner who may have been living with the deceased for many, many years but wasn’t married, is not protected under the Rules. In the absence of a marriage/civil partnership, a co-habiting partner will not be automatically entitled to receive any part of the deceased’s estate. If they have children together, the whole estate will go to their children. If they don’t have children together, the estate could go to the deceased’s parents, siblings, or other relatives.
The remedy available for co-habitees in this situation may lie in a claim made under the Inheritance (Provision for Family and Dependents) Act 1975.
What is the Inheritance (Provision for Family & Dependents) Act 1975?
The Inheritance (Provision for Family & Dependents) Act 1975 (“the Inheritance Act”) allows someone to claim financial provision for their maintenance, from the estate of a deceased. This could be because they have been left out of a Will of a deceased or intestacy completely or because they have been disappointed with what they have received from the estate of a deceased.
A claim can be made whether the estate is distributed under a Will or the Intestacy Rules. It is not a claim to challenge the validity of the deceased’s Will. Claims brought under the Inheritance Act are to change or alter the distribution of the estate under the existing Will or the Intestacy Rules to include the person making the claim or to change the amount they should receive.
Who can apply?
If the deceased was domiciled in England or Wales at the time of his/her death, the following people can bring a claim, as ser out in section 1(1) of the Inheritance Act:
Is there a time limit for bringing a claim?
Under section 4 of the Inheritance Act 1975, anyone who wishes to bring a claim must do so within 6 months of the date of the Grant of Probate or the Letter of Administration. However, in certain exceptional circumstances, the court may exercise its discretion to extend the time limit by considering the following factors:
The above elements are only a few examples, and permission to bring an out of time claim under the Inheritance Act depends on the court’s discretion in consideration of all the facts of the case.
It is very important to act and seek legal advice as quickly as possible if you believe you may have a claim under the Inheritance Act.
What will the Court consider?
Before making any decision, the court will examine whether the applicant has received reasonable financial provision from the estate of the deceased. If not, the court will determine whether it should intervene along with the following factors laid down in section 3 of the Inheritance Act 1975:
In a case where the applicant is the spouse, civil partner, or former spouse/civil partner of the deceased (who has not remarried or engaged in a new civil partnership), the court will also consider the following additional factors:
If the applicant is a child or was treated as a child of the deceased, the court will also look into:
The factors set above are not an exhaustive list. The court will assess all claims on all facts of each case.
What can the Court order if the claim is successful?
The court’s powers on deciding how the deceased’s estate would be redistributed are wide.
The court can make the following orders:
Again, which order and/or how much the applicant is entitled to if their claim is successful will be within the court’s discretion.
Ilott v The Blue Cross and others [2017] UKSC 17
The case of Ilott v Blue Cross and others [2017] UKSC 17 shows how principles of the Inheritance Act work in practice.
Mrs Melita Jackson, the deceased, had excluded her only child Mrs Ilott from her Will and left the whole £500,000 estate to three animal charities (The Blue Cross, Royal Society for the Protection of Birds, Royal Society for the Prevention of Cruelty to Animals) which she had no particular connection with. In 2002, Mrs Jackson also wrote a letter stating that she it was her definite intention to leave her whole estate to the three charities and nothing to her only child. This was apparently motivated by the estrangement of the two, after Mrs Ilott left home to live with her boyfriend in 1978. Mrs Jackson did not approve of the boyfriend. This led to their being no contact or financial connection between the two up to the death of Mrs Jackson in July 2004.
Following her mother’s death, Mrs Ilott as an adult child of the deceased, brought an application under the Inheritance Act for reasonable financial provision to be made for her from her mother’s estate. At the time Mrs Ilott filed a claim, the financial circumstances of her family were modest and straitened. Although she had five children, the only income of her family was from Mr Ilott’s part time work as a supporting actor and state benefits.
Over a period of 10 years, several appeals and counter appeals were made by the charities and Mrs Ilott. The Supreme Court eventually decided that Mrs Ilott was entitled to reasonable financial provision from her mother’s estate and awarded £50,000, even though there was no contact at all between herself and her mother for 26 years and she had been living independently from her mother.