The idea of a will is that you can decide who inherits after you’ve died, but there are – limited – circumstances in which it can be challenged.
It seems that a combination of the tough economic conditions and a rise in the number of second marriages and has meant that more people are willing to contest or challenge a will than before. But the process of challenging a will can be lengthy, emotionally draining at best (and incredibly divisive at worst) and expensive. And there’s no guarantee that you’ll get the financial benefit you believe you’re entitled to at the end of it.
Reasons why you can challenge a will
In the UK there are only limited circumstances when you can challenge a will. These are:
• Because the will is invalid. This can be for a variety of reasons, such as the person whose will it is (called the ‘testator’ in the jargon) was unduly influenced or coerced or because they did not have the mental ability to know what they were doing or because the will wasn’t signed or witnessed correctly.
SAVVY TIP: Most challenges using ‘undue influence’ as a reason are a result of concerns about a carer, neighbour or – sometimes – one family member putting pressure on the person. An increase in cases of dementia has seen a corresponding rise in the number of families challenging wills on the basis of a lack of mental capacity.
• Because a family member wasn’t provided for. Husbands, wives, civil partners, children and dependants can make a claim if they haven’t been left anything/enough in the will.
SAVVY TIP: In England and Wales, the Act that the challenge comes under is the Inheritance (Provision for Family and Dependants) Act 1975. In Scotland husbands, wives, civil partners and children have ‘legal rights’, which basically means they are entitled to a share in everything you own that’s not land or buildings no matter what is written in the will.
When do people contest a will?
There are lots of different situations when someone might challenge a will, but the kind of trigger events can be:
• Step families. Say a parent dies after a short second marriage and leaves everything to his wife, who in turn leaves it all to her children. This may mean his children with his first wife get nothing and they may challenge the will.
• Families that are not close (either geographically or emotionally). A parent may leave much or most of their assets to a carer, a neighbour, a charity or even the local restaurant. Family members may suspect she or he has been put under pressure to do so.
SAVVY TIP: Paula James, a partner with law firm Thomas Eggar, says that an elderly person who relies on a carer or his/her neighbours can – sometimes – be vulnerable. “I’ve known cases where someone has been worried that their neighbour or carer will stop coming round if they don’t leave them something in their will. Sometimes they want to leave them some money, at other times they’ll come under pressure to do so.”
Who can make a claim?
While a number of family members have the right to challenge a will, there’s no guarantee that you’ll succeed.
• If you’re a husband/wife or civil partner. If your husband/wife/civil partner left all their money to charity or someone outside the family, the courts could intervene if they thought you hadn’t been provided for.
• If you’re a young child. A judge could rewrite the will if a dependent child wasn’t being provided for.
SAVVY TIP: These are the rules for England and Wales, in Scotland, 'legal rights' - as described above - apply.
• If you’re an adult son or daughter. You would have the right to bring a claim but (in England and Wales) you’d only succeed if you could show that you’d been dependent on your parent financially.
SAVVY TIP: Adult children with mental health problems or a mental disability who had been provided for by a parent while they were still alive would be able to make a claim, but an adult child with independent means would be unlikely to succeed.
Warning! Legal action can be expensive and time consuming
Taking legal action is never likely to be cheap, but the cost of contesting a will, particularly in England or Wales, can be hefty.
• The dispute may have a long history. Quite often the disagreements are not just about the will but are the culmination of a long-standing family feud. This means that it’s even harder to reach a settlement.
SAVVY TIP: A number of solicitors will encourage both sides to use mediation to settle disputes about wills (as it’s cheaper and can increase the chances of reaching an agreement), but not all families will use it.
• The law can seem unfair. Sometimes parents can favour one child or cut close family members out of the will altogether, but unless there’s a reason why they should be provided for, there may be little you can do.
SAVVY TIP: Paula James of Thomas Eggar says that some parents give a lot of money to one child throughout their adult life and then try to redress the balance in their will by leaving their money to the other child. "In fact, the child who's received money throughout their adult life has a very good chance of making a claim precisely because they've not been financially independent."
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