29th January 2020

“Even with the best will in the world…” Challenging Wills and making claims against estates

Article by Patrick Jenkins | News

Patrick Jenkins, Partner and Head of Litigation, considers some of the issues which can arise where no Will, or a Will that proves to be deficient, has been prepared and why it is important to have an up-to-date and properly executed document.

The starting point is that it is always advisable to have a Will in place. Without one, the law prescribes who may deal with the deceased’s affairs and who should inherit their estate. The Will should also be kept up to date and be reviewed periodically, but especially if you have had important changes in your life, such as starting or ending a relationship, starting a family or if you find yourself in a significantly different financial position for whatever reason.

Challenges to a Will

Commonly, Wills are disputed where they have not been properly executed (such as not having been signed, or correctly witnessed). A Will may also be challenged if the person making the Will did not have the mental capacity to make it, or if they did not understand the full terms and effect of their Will, the extent of the property within their estate or the claims to which they ought to give effect.

There are also cases where a third party has exerted pressure on the deceased and where that coercion amounts to actual ‘undue influence’ on the deceased to make a particular Will.

Sometimes, it may even be possible to prove that the Will has been forged or is the result of a fraud.

However, challenges to a Will can be expensive and there is a common misconception that the costs will be paid out of the estate, which is not always the case. The costs of having a valid, up-to-date Will in place are well worth paying, to at least try and reduce the likelihood of the Will being challenged.

Other claims

As well as challenging the validity of the Will itself, even where the Will is valid it may still be possible in certain circumstances to make a claim if it does not provide an individual with reasonable financial provision, in which case a claim may be made under the Inheritance (Provision for Family and Dependants) Act 1975. There are strict time-limits for bringing such claims and advice should be taken promptly by anyone who thinks they may have a claim.

It may also be possible to bring a claim if someone can show that, for example, they were promised a share of some property by the deceased and that they relied on that assurance to their detriment, but where the promise was not kept, or is then contradicted by the contents of the final Will.

Even if none of the above claims are available, it may still be possible to apply to the Court for the Will to be rectified if it can be shown that the Will fails to reflect the deceased’s intentions, for example as a consequence of a clerical error, or where there was a failure by the person who drafted the Will to understand what the deceased intended, or to follow their specific instructions.

Where problems arise as a result of the negligence of the Will draftsman then anyone losing out may also have a professional negligence claim.

All cases are fact specific and specialist legal advice should be sought at the earliest opportunity.

Patrick Jenkins is a Member of the Association of Contentious Trust and Probate Specialists (ACTAPS), which is a specialist body for lawyers practising in contentious trust and probate work and he has considerable experience of dealing with these types of claims. He is also a member of the Professional Negligence Lawyers Association (PNLA). Our Private Client team of lawyers also includes members of the Society of Trust and Estate Practitioners (STEP).

Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice in relation to your own particular circumstances.