How to contest a Will

How can I contest a will?

Are you an ex spouse or Child or family member who was left out of a Will ? This article will answer a lot of your questions.

The Inheritance (Provision for Family and Dependants) Act 1975 lets certain classes of people make an application for reasonable financial provision where the deceased’s will and/or intestacy rules do not provide for them

Can you make a claim?

The following classes of people can make a claim:

  • the deceased’s spouse or civil partner;
  • the deceased former spouse or civil partner (if they have not remarried);
  • cohabitants who had been living in the same household as the deceased for two years ending immediately prior to the deceased’s passing;
  • the deceased’s child(ren);
  • someone treated as a child of the family by the deceased; or
  • anyone who was being maintained wholly or partly by the deceased immediately prior to their passing.

Does the age of children prevent a successful application?

Not necessarily. In the recent case of Ilott v Mitson (2014), the deceased’s adult daughter successfully challenged her father’s will, which left his estate to three charities. Despite the fact she had no expectation of inheriting under the will, it was still found not to make reasonable financial provision for her.

However, it is important to note that in a number of previous cases it was found to be very difficult for adult children to claim.

Who can be seen as a ‘child of the family’?

Recent legislation has broadened the class of individuals that fall into this category to include non-marital relationships and single-parent families.

Do I qualify as being ‘maintained by the deceased’?

A person is maintained if the deceased was making substantial contributions in money (or money’s worth) towards their reasonable needs.

What is “reasonable financial provision”?

This is known as the “gateway stage” and depends on the class of the applicant. The definition is more generous towards the deceased’s spouse or civil partner, who is entitled to an amount reasonable for a spouse to receive, whether or not that much is required for their maintenance. All other classes of applicant are only liable to get as much financial provision as is necessary for their maintenance alone.

The assessment of whether financial provisions are reasonable is an objective.

What awards can the court make if my claim succeeds?

If it is found that there has not been reasonable financial provision, then it is to the court’s discretion what award should be made in what is known as the “evaluative stage”. The court can make the following orders:

  • periodical payments;
  • lump sums;
  • transfer of property;
  • settlement of property; and
  • the variation of certain types of settlement for the applicant’s benefit.

Orders can only be made in respect of the ‘net estate’, which does not actually include all property owned by the deceased (a notable exception is pension benefits, unless nominated).

What factors does the court consider when making its decision?

The court must consider the following general factors:

  • the financial resources and needs the applicant has or is likely to have in the foreseeable future;
  • the financial resources and needs any beneficiary or other applicant for an order has or is likely to have in the foreseeable future;
  • obligations and responsibilities the deceased had towards any beneficiary or applicant;
  • the size and nature of the net estate of the deceased;
  • any physical/mental disability of any beneficiary or applicant; and
  • any other matter, including the conduct of the applicant or any other person, that the court may consider relevant given circumstances.

In addition, specific factors must be considered for spouses or civil partners (whether they be former or current):

  • the age of the applicant;
  • the duration of the marriage/partnership;
  • the contribution of the applicant to the welfare of the family of the deceased, including those made by looking after the home or caring for family members; and
  • the court will have regard for the provision which the applicant might reasonably have expected to receive, if on the day of the deceased’s death the marriage had ended by divorce instead (the ‘deemed divorce’ test).

What if my spouse passes away after we have had a decree absolute, but before we have managed to resolve financial matters?

If the spouse‘s passing occurs within 12 months of the decree absolute the court has discretion to treat the former spouse as a spouse where:

a)   an application for a financial provision order or a property adjustment order has not been made; or

b)   if such an application has been made, proceedings have not been determined by the time of the deceased’s death.

Please note, that, as with any exercise of discretion, nothing is guaranteed. This is why, where possible, we always advise our clients not to apply for the decree absolute until after financial issues have been resolved when separating.

What if I waived my inheritance rights during a previous financial claim?

Whilst this means you cannot bring a claim yourself, if there are children then you will be able to bring a claim to the court through their rights to inherit.

How much time do I have to bring a claim?

Claims must be brought within six months of the date of the grant of representation. Whilst it is possible to apply for permission to claim outside this time limit, it is unlikely that permission will be gained. Recent amendments also allow applications to be brought before a grant of representation.

What if I have a pre-nuptial agreement?

A pre-nuptial agreement cannot exclude the court’s jurisdiction, but may help pre-empt and defend claims.

As mentioned above, the ‘deemed divorce’ test is applied by the court in determining whether to make an award and how much of one to make. Seeing as a pre-nuptial agreement would affect the financial provisions of a divorce, the court will be able to glean the parties’ intentions.

The very fact the parties have negotiated a prenuptial agreement often suggests both have already considered the financial provisions to be made upon the death of one of them. Moreover, for such an agreement to hold weight, it must make provisions for the parties’ needs, which may help establish that reasonable financial provisions have been made.

Please contact our Dispute Resolution Department on 0208 232 95460

This Article was written by Rishi Krishnan LLB

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