Challenging a Will

We understand that losing a loved one can be one of the most upsetting times in a person’s life and that the grieving process can take time. The situation is often made worse when there is a dispute over a Will. This process can lead to bitter relations between family members and therefore this needs to be approached with sensitivity and tact.

 

Grounds to Challenge a Will

A Will can be challenged if it has not been properly signed or witnessed.  A Will needs to be witnessed by two independent adult witnesses.  These witnesses cannot receive under the Will.  A Will may also be challenged if the deceased did not understand the wording of the Will as the deceased did not have “testamentary capacity”, for example, the deceased may have been suffering from Alzheimer’s or dementia. Wills can also be challenged if the deceased had been coerced into signing the Will or subject to some form of pressure, known as “undue influence”.

 

Six Month Time Limit

If you wish to make an application for financial provision under the Will, you will be required to make an application under the Inheritance Act within six months of the Personal Representatives obtaining a grant of probate to allow them to administer the estate. The Court’s permission will be needed to allow the applicant to begin proceedings outside of this six month time limit. However, the Court will only provide permission in exceptional circumstances and therefore it is imperative that advice is obtained as early as possible.

 

Who Can Make a Claim?

The Inheritance Act allows certain people to make claims if they have not been reasonably financially provided for. You can make a claim if it falls within one of the below criteria:

  • Someone who lived with the person who died for at least two years before the death.
  • A child of the person who died.
  • A person treated as a child of the person who died.
  • Someone who has been financially supported by the person who died up until the death.

Spouse – Where the applicant is a spouse or civil partner, the court considers those factors given weight within divorce proceedings, such as the length of the marriage, or civil partnership, the contributions made by the parties to the family’s welfare and the age of the applicant.

Child – In cases where the applicant is a child or step-child of the deceased, the court will also consider the manner in which the applicant is being, or is expected to be, educated or trained. With step-children, the court will further look at the extent to which the deceased had taken on responsibility for the child’s maintenance, whether any other person had a duty to maintain the child and whether the deceased, in taking responsibility for the child, was aware that she/he was not the natural parent.

If you had been maintained by the deceased – In cases where a claim is brought by a person being maintained by the deceased at the time of his death, the court will look at the extent to which, and the basis upon which, the deceased began maintaining the applicant and the length of time for which he had done so.

 

Resolving Disputes Quickly

Most cases can be resolved out of Court by using mediators to ensure that costs are kept to a minimum and that cases are concluded quickly.

You should check your home contents insurance policy to see as to whether you have legal expenses cover as the case may be covered under your policy.

 

The Factors the Court will Consider

The Court, in deciding what to do in an Inheritance Act claim, will give consideration to the factors below:

  1. The financial resources and needs of the applicant and beneficiaries now and in the foreseeable future;
  2. Any obligations and responsibilities the deceased had towards the applicant or the beneficiaries;
  3. The size of the estate;
  4. Any physical or mental disability of any applicant or beneficiary;
  5. Any conduct or the applicant or any person the court considers relevant.

 

Financial Award

You may be entitled to periodic payments or a lump sum from the deceased’s estate. You will need a copy of the Will and Grant of Probate together with a the deceased’s financial statement showing all their assets and liabilities of the estate for advice to be provided.

Please telephone us if you require free legal advice.