The principle of testamentary freedom allows individuals in England and Wales to leave their assets to whomsoever they choose. However, this freedom is not absolute. There are circumstances under which the will of a deceased person can be legally challenged. At Midwinters Solicitors, we specialise in Contentious Wills and Probate, providing expert guidance and representation to those who believe a will does not make fair provision for them.
Grounds for Challenging a Will
Challenging a will can be based on various grounds, primarily focusing on whether the will reflects the true intentions of the deceased and if it was created under proper legal conditions:
- Failure to Reflect the Deceased’s True Wishes: If there are concerns that the will does not accurately reflect the deceased’s intentions, perhaps due to errors or misunderstandings during its drafting, it can be disputed.
- Technicalities – sometimes a Will is incorrectly prepared or witnessed. Where this happens the Will is usually totally invalid and the Estate would be administered as if there was no Will in existence or under the terms of the most recent valid Will.
- Lack of capacity – sometimes people make a Will and they do not have the mental capacity to make it. This can happen with elderly people and persons either taking heavy prescription medication or having substance abuse problems The person preparing the Will may not recognise this lack of capacity or suspect anything untoward and the issue may only come to light after the person who has made the Will has died.
- Lack of knowledge and approval – sometimes it can be the case that a person making a Will does not know or understand the nature of the document that has been signed. This can particularly be the case if, for example, a person cannot read or who was not wearing their essential spectacles at the time signs a Will that they do not understand.
- Undue influence – sometimes family members put undue pressure on or even actually threaten someone who makes a Will to provide favourably for them in the document. A Will can be set aside on this ground.
- Devastavit – This is a legal expression which literally means “waste” – a claim in devastavit is made against the executor or the administrator of an estate who has inappropriately allowed the assets of an estate to diminish by neglect, maladministration, abuse or other negligence. In these circumstances, the executor or administrator of the estate can be personally liable to disappointed beneficiaries.
The Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance Act 1975 provides a critical framework for those who have been left out of a will or feel that the will does not make reasonable financial provision for them. This legislation allows certain categories of people, closely connected to the deceased, to make a claim against the estate.
Who Can Make a Claim?
The Act defines specific classes of individuals who may bring a claim, including:
- Spouses or civil partners of the deceased.
- Former spouses or civil partners who have not remarried or entered into a new civil partnership.
- Individuals who lived with the deceased as if they were a spouse or civil partner for at least two years immediately before the death.
- Children of the deceased, including any treated as a child of the family.
- Any other person who was being substantially maintained by the deceased immediately prior to their death.
What Constitutes Reasonable Financial Provision?
The court’s assessment of what constitutes reasonable financial provision depends on the applicant’s relationship to the deceased. For spouses or civil partners, the starting point for the standard of maintenance is usually at least what they might have received had the relationship ended in divorce rather than death though we have often secured better provision for the client using little known case law. For other applicants, the provision should enable a standard of living neither luxurious nor poverty-stricken.
Factors Considered by the Court
When deciding on claims under the Inheritance Act 1975, courts consider multiple factors:
- The financial needs and resources of the applicant, other applicants, and any estate beneficiaries.
- Any obligations and responsibilities the deceased had towards any applicant or beneficiary.
- The size and nature of the estate.
- Any physical or mental disabilities of applicants or beneficiaries.
- Other relevant matters, including the conduct of the applicant or others involved.
If successful, the court can make various awards, such as lump sums, periodic payments, or property transfers.
Why Legal Expertise is Essential
Challenging a will or making a claim under the Inheritance Act is complex and requires detailed legal knowledge and expertise. An experienced solicitor in contentious wills and probate is essential to navigate the nuances of the law and to represent your interests effectively.
At Midwinters Solicitors, we understand the sensitive nature of will disputes and provide comprehensive support to ensure that your rights are protected. If you have been disinherited or feel that a will does not make reasonable provision for you, it is crucial to seek professional advice to understand your legal options and the potential outcomes of your case.
Conclusion
If you suspect a will is invalid or fails to make reasonable provision, the law may be on your side. With the right legal expertise, you can challenge the will to seek a fair resolution. Contact Midwinters Solicitors for a consultation to discuss how we can assist you with disputing a will or making a claim under the Inheritance Act 1975. Visit our Will Disputes page for more information or to schedule an appointment.
