Losing a loved one is distressing enough but it can be made significantly harder if you find out that you have been excluded from the deceased’s Will. Where other relatives stand to inherit instead of you, it can be a deeply unpleasant and potentially overwhelming experience.
It is important to know that despite the shock and other negative emotions you will probably be feeling, all hope is not lost. Here, James Pettit, a Solicitor with Palmers who specialises in Will disputes, explains some of the most common ways to contest the provision made in a Will.
How can I contest a Will?
There are three main ways to challenge the provision made in a Will:
- Challenging the validity of the Will itself;
- Bringing a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975; and
- Claims to enforce promises made by the Deceased during their lifetime (constructive trust claims and proprietary estoppel claims)
These types of claims are often costly and complex, so it is important to seek advice on whether contesting the Will is the right option for you and, if so, whether you have legal grounds for doing so..
Will Validity Disputes
If a Will is found to be invalid altogether, it will be set aside and the Deceased’s estate will be distributed under the terms of the Deceased’s previous Will or, if one does not exist, the Intestacy Rules a Will may be set aside for any of the following reasons:
- Lack of testamentary capacity
- Undue influence or coercion
- Lack of knowledge and approval
- Forgery and fraud
- Fraudulent Calumny (where someone has poisoned the testator’s mind)
Financial Provision Claims
If you were a family member or a dependent of the deceased and the Will has made insufficient provision for you, it is possible for the Court to make reasonable financial provision for you out of the Deceased’s estate.
The Inheritance (Provision for Family and Dependants) Act 1975 can make an order for the estate to make financial provision for a spouse, former spouse, child, child of the family or dependant of that person.
With the increase in second marriages and blended families, reasonable financial provision has become increasingly common as a reason for contesting a Will.
The courts will examine the case put forward for your claim and consider various factors including:
- Your financial needs, both now and in the foreseeable future
- The financial needs of any other applicant and beneficiary both now and in the foreseeable future
- Any obligations and responsibilities which the deceased had towards any applicant towards any beneficiary of the estate of the deceased
- The size and nature of the net estate of the deceased
- Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased
- Any other matter that the court may think is relevant
Promises made by the Deceased
If the Deceased made a promise to you that you would receive a property or an interest in a property, either during the Deceased’s lifetime or upon death, which you accepted and relied upon to your detriment, it might be possible for you to enforce the Deceased’s promise and make a claim to enforce that promise or agreement.
Such claims are often extremely complex and will turn heavily on the available evidence, therefore, if you think you might have a claim, it is important to seek advice at the earliest possible opportunity.
Protect your interests without delay
Being excluded from a Will can leave you feeling emotionally distressed, but it is important to know that you still have options including legal redress in certain circumstances.
The right legal guidance will ensure that you protect your interests and potentially secure a fair share of the estate, so it is important to seek advice quickly. Delays can potentially harm your chances of a positive resolution.
Looking for advice on Will disputes? Contact us today.