Contested Wills and Financial Provision

Organise your affairs to avoid disappointed beneficiaries as life expectancy increases

At a time when life expectancy is increasing a Will is often seen as an essential tool.

01 Dec 2023

Team name
Martyn Trenerry

Martyn Trenerry

As many of us are simply living longer there are many good reasons why an individual might want to have a Will. A Will is a legal document you create that sets out instructions for who will inherit your estate and what should happen after you die. It may detail what sort of funeral you would like, how you would like your possessions to be distributed, as well as other wishes, like who should bring up your children, if you have them. It ensures that your property and assets are protected and distributed according to your wishes. Equally important is the fact that a Will alleviates any burdens on your family members.

It is thought that as many as 60% of adults do not have a Will. If you die without one, your estate will be distributed according to strict rules, meaning the people you care about may lose out. This can, in certain circumstances cause considerable hardship and difficulty.

On a person’s death without having made a valid Will, or part of their Will is invalid or ineffective, then the Intestacy Rules will apply. The Rules set out the priority order of who is entitled to inherit the deceased’s estate dependent based upon the deceased’s surviving relatives. The surviving spouse or civil partner will rank first in the order of priority and, depending upon whether the deceased had children who survived him, they will receive the largest share of the estate.

If someone has been left out of a Will entirely, or are left a gift  that is not sufficient to meet their needs, they could be entitled to make a claim for reasonable financial provision. The Inheritance (Provision for Family and Dependants) Act 1975 makes provision for a court to alter the distribution of the estate of a deceased person to any spouse, former spouse, child, child of the family, or dependant of that person in cases where the deceased person’s Will or the rules of intestacy fail to make ‘reasonable financial provision’.

What is ‘reasonable financial provision’ differs depending on your relationship to the deceased. If you were married or in a civil partnership, the law states that you should receive: “such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.”

It is more complicated if you were separated from the deceased, or you were going through divorce proceedings at the date of their death. If a financial settlement has yet to be made, and a decree absolute was issued in the 12 months before the deceased’s death, the court may effectively disregard the fact that your relationship had broken down. Otherwise, you may only be able to claim what is reasonable for your maintenance.

Alternatively, in cases where you may have concerns as to the validity of any Will there are several grounds upon which such can be challenged:

  • Where concerns are held as to the capacity of the deceased at the time the Will was created
  • If a beneficiary of the Will may have influenced the deceased into including provisions within their Will that they otherwise would not have
  • Where there are doubts as to the suitability of the witnesses or the signature of the deceased upon the Will
  • If concerns are held as to whether there has been a forgery of the Will
  • If the deceased was unaware that they were creating a Will or if they were not aware of its contents

Ultimately each challenge to a Will or an estate shall be considered upon its own facts, although it is often helpful to obtain a copy of any current or previous Wills of the deceased as a starting point. Depending then upon the nature of your challenge, further evidence, such as the deceased’s medical records or statements from relatives and carers may assist.

To proceed with a claim, generally a prospective contester and a solicitor will meet to discuss the facts surrounding the passing of a deceased. Sometimes a breakdown in a relationship between the deceased and a contester, or a form of estrangement between parties, is seen. It is important to obtain any relevant details surrounding such. In addition, a solicitor can review any relevant documents and advise you on the most suitable ground/s to advance a challenge and the associated strengths and weaknesses of your case.

Following their instruction on your behalf, your solicitor can engage in correspondence with the opposing party to set out your claim. Depending on the position of the opposition, mediation between parties may then be agreed in view of reaching a quicker and more cost-effective resolution to matters. Should mediation be unsuccessful or inappropriate, your case can proceed to court. However, a case often reaches settlement before a final trial as parties are free to negotiate with one another throughout the course of the matter.

M&P Commentary

Martyn Trenerry, Member, Solicitor and specialist in Contested Probate Disputes, said:

“The importance of holding a valid Will cannot be underestimated. The application of the ‘intestacy rules’ upon a death of an individual who did not hold a Will is often unsatisfactory and does not follow the deceased’s wishes. A challenge to a Will or an estate in any form can turn upon its respective facts. It is therefore vital that a thorough investigation of the available evidence is undertaken to ascertain the merits of any prospective challenge and thereafter, that a case is appropriately pleaded to maximise the chances of a successful outcome.”

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