When can a Will be Challenged?

Nov 28, 2023

Families are complicated affairs and unfortunately the death of a loved one can expose the cracks in inter-family relations. Perhaps you have been cut out of a parent’s or partner’s Will when you were not expecting to be. You may be concerned that an executor is not handling a loved one’s estate appropriately or that a loved one was not in the right frame of mind when they made their Will. This article looks at the various ways you can challenge different elements of a loved one’s estate.

Most probate disputes stem from:

  • Improper drafting or execution of Wills
  • Issues of mental capacity (e.g. dementia)
  • Undue influence (i.e. pressure to leave certain things to someone)
  • Executors mishandling the estate
  • Someone feeling ‘left out’ of a Will

Challenging a Will

For a Will to be valid, it must be signed by the person who made it (the ‘Testator’), and at least two witnesses who are both present to witness the Testator’s signature. The witnesses also have to sign the Will. If there is any doubt as to whether these steps have been followed or carried out correctly then it can render the Will invalid.

The Testator must also have mental capacity to execute the Will for it to be valid. It’s important to note that a challenge on this basis must consider the testator’s mental state at the time of signing the Will, not subsequently. Being of ‘capacity’ is not just an issue of neurological illness (e.g. dementia), but it could be simply a time of poor mental wellbeing. A key consideration is whether the Testator did not understand the language or implications of the Will at the time it was drafted and executed. It’s important to note that capacity is fluid, as in that capacity can change from day to day, even hour to hour. A competent professional will assess each person’s capacity each time they draft a Will for a client and will address any concerns they may have at the time.

If a Will is suddenly altered to include or exclude someone or substantially change the way the estate will be divided, then it could signify that there has been an element of undue influence. Undue influence is exceptionally difficult to prove, but essentially boils down to whether someone has unduly pressured, incentivized or exerted an amount of influence which prompted the Testator to change their Will. This is not something that will always be immediately clear and there is a high hurdle to show influence has moved to a case of undue influence.

Concerns with the handling of a loved one’s estate

Even with a valid Will, it may be that a beneficiary under the Will feels that the estate has been mishandled by an executor.

Executors owe a duty to the beneficiaries to manage the estate with care. Disputes can arise if, for example, a beneficiary feels as though the executors are not keeping proper accounts or using money or assets from the estate otherwise than dictated in the Will. It is always important for an executor to seek legal advice if they are unsure how to administer the deceased’s estate. Similarly, a beneficiary should also seek legal advice if they have concerns over the handling of the estate by the executor.

Being ‘left out’ of a Will

The Inheritance (Provision for Family and Dependents) Act 1975 provides that a specified group of people can apply to the courts if they can show that the deceased person’s Will does not make reasonable financial provision for them. The application can be made even in the event of the deceased person dying and not having a Will if the effect of the intestacy rules would mean that reasonable financial provision has not been made for the person applying.

The group of people who can make such an application are as follows:

  • the spouse or civil partner of the deceased
  • the former spouse or civil partner provided that person has not remarried or entered into a subsequent civil partnership
  • a child of the deceased person
  • any person who is treated as a child of the family by the deceased person and this includes former relationships
  • any other person who immediately prior to the death of the deceased person was being wholly or partly maintained by the deceased person.

What do I do if I get into a dispute?

Sometimes a dispute is unavoidable, and normally when a dispute arises, it is in the immediate aftermath of the loss of a loved one. These disputes are often complex, messy, and emotionally charged for all involved.

If you find yourself in a dispute, you should always seek the advice of a specialist legal professional, who will be able to advise you appropriately and guide you through the process.

If you’d like more information on the content of this article, or advice on any of the issues raised, please contact us to speak to a member of our Dispute Resolution Team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.
James Musallam

James Musallam

Solicitor, Dispute Resolution

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