Thankyou to the Society of Will Writers for the below article.
It is such a shame that in todays’ society, will disputes are becoming increasingly common. Reasons for this of course vary but it is generally down to “who gets what” and the value of the estate which is involved in the decision making when contesting a Will.
When a loved one passes away, this can be devastating for friends and family. Even moreso when they find they have been written out of a Will or not received as much inheritance as they expected to. The grief can soon change to feelings of pure spite towards the deceased.
There are various reasons for someone not being provided for in a Will which includes not having spoken to the person for some time, strained relations with the child, separation from their husband or simply a child already being very wealthy and not needing the inheritance. We’ve even had these reasons given in the letter of wishes – “my daughter would not watch football with me, my son refused to support the same football team as me.” Sounds random but these are real reasons given by testators…notice a theme?
Either way, being written out of a Will can not only cause problems within the family but this is where inheritance disputes occur and matters become contentious.
There are two different approaches to contesting a Will. The first is a challenge by a disappointed beneficiary who feels that the will doesn’t make “reasonable provision for them”. In these cases, they aren’t seeking to prove that the Will is invalid, just that provision should have been made for them. The second is a claim that the Will itself is invalid for some reason so the whole Will fails.
We’ll look at the common ‘provision claim’ first.
Claims that the Will failed to Make Reasonable Provision
Who Can Challenge a Will for Provision?
Certain relatives and dependents can claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that the distribution of the estate does not make reasonable financial provision for them.
The classes of those who can make a claim are set out below:-
- A spouse or civil partner
- A former spouse or civil partner – they must not have married or registered a new civil partnership
- A person who cohabited with the deceased as husband and wife for 2 years prior to the deceased’s date of death.
- A child
- A person treated as a child of the family (e.g. stepchild)
- A financial dependant
What are the Grounds?
If the beneficiary or applicant can evidence that they were either financially dependent on the deceased and an insufficient share of the estate or monies was left to them, or that they fall into one of the categories of family member and ‘reasonable provision’ has not been made they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. An example of this might be a testator who makes no provision in their Will for their child who is dependant on them.
What are the Other Grounds for Challenging a Will?
The second category of challenges are claims that the Will is invalid for some reason. There are generally 3 other main reasons why a Will would be challenged. Let’s look at these in more detail.
The Will is Invalidly Signed
The requirements for a valid will are set out in section 9 of the Wills Act 1837 which are:
- It must be in writing
- It must be signed by the testator, or signed on their behalf
- The testator must sign or acknowledge their signature in the presence of 2 witnesses.
- The witness must sign or acknowledge their signatures in the presence of the testator.
If these requirements are not met then the Will won’t be valid and will fail.
The Testator Lacked Capacity at the Time of Making the Will
The testator must have capacity at the time of making the Will. They must also know and approve the contents of the Will. The test for capacity to write a Will is the Banks v Goodfellow test. It must be shown that the testator:
- Understands the nature of making a Will and its effect
- Understands the extent of their property/assets
- Understands and appreciate the moral claims they ought to give effect to i.e. who they might reasonably be expected to provide for
- Is not suffering from any disorder of the mind that is ‘poisoning their affections’ and interfering with how they distribute their estate.
The Testator was Unduly Influenced
Undue influence is defined as “influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.”
Effectively, this involves applying pressure on the testator and making them do something by using force or threats which takes away their ability to make decisions at their own free will.
Due to its nature, undue influence normally happens behind closed doors and ordinarily by people who are in a position of trust i.e. solicitor and client.
As it can be very discrete, a claim of this sort can be very difficult to prove as the Court will need to rely on the evidence presented to them. Therefore, the only way it would be possible to illustrate any undue influence is by the claimant evidencing that there is “no other reasonable explanation” for the Will being drafted as it is.
For more information please see our article which solely discusses the issue of undue influence and Wills – https://www.willwriters.com/blog/undue-influence-wills/
What Happens when you Contest a Will?
The Court will take into account the following guidelines when considering a claim brought under the 1975 Act. These are as follows:
- The financial needs and resources of the beneficiaries and applicants (if they are not a beneficiary)
- Any obligations and responsibilities the deceased had towards any beneficiary or applicant
- The size and nature of the estate
- Any mental or physical disability of the beneficiary or applicant.
When considering claims brought by a spouse or civil partner, the Courts will consider the age of the applicant and duration of the marriage or civil partnership.
The test when considering the standard of provision is “such provision as would be reasonable in all the circumstances to maintain the applicant.”
If the applicant is successful then the courts will decide what award should be made. The Will remains valid, but the way assets are distributed will be varied by the court to make provision for the applicant. This varies by case as what award is appropriate will depend on the circumstances of the applicant, the size of the testator’s estate, and what assets are available.
For the invalidity claims the outcome is very different. If the claimant is successful in bringing their claim and the testator had made an earlier Will, the estate will simply be distributed in accordance with the earlier Will. However, if the testator had not made an earlier Will, their estate will pass in accordance with the laws of intestacy.
Is there a Time Limit for Contesting a Will?
Yes, but again this varies. A provision claim must be brought within 6 months of the grant of probate. It is therefore advisable for executors not to distribute the estate for at least 6 months from the grant of probate or even wait another 4 months after that as the applicants have 4 months from the issue of proceedings to serve them on the other side. If an executor waits before distributing the estate is protected from any liability under the 1975 Act.
For claims that the Will is invalid there is no time limit.
What Happens if an Executor or Trustee Contests the Will?
If an executor or trustee contests the Will for any reason, they simply need to renounce their position as there would be a conflict of interest if they continued to act. It is always advisable to appoint substitute executors and trustees.
As more and more Wills are being contested by disappointed family members who believe they should have had either a share or a greater share of the inheritance, cases tend to fall in the public eye.
Let’s take a look at an earlier case of Ilott v Mitson and Others, 2015.
In this case, Mrs Ilott brought a successful claim under by the 1975 Act against her mothers’ estate despite being excluded from her mother’s Will. The estate was valued at around £480,000 and had been left to 3 animal charities.
Mrs Ilott was estranged and therefore her mother had deliberately excluded her daughter from the Will and instead left her estate to 3 animal charities which it was found she had no connection with.
Previously, adult children who tried to claim under the Inheritance Act on the grounds of reasonable financial provision not being made for them, were unsuccessful as there was no evidence that as an adult, they were being provided for by their parents. Despite this, at first instance, Mrs Ilott was successful in her claim and was awarded £50,000.
The decision was appealed by Mrs Ilott on the grounds that the award was insufficient as it would deprive her of her means tested benefits and not provide her with enough funds to purchase the housing association property she was currently residing in. The Court of Appeal awarded her £143,000 to enable her to buy her home along with an additional £20,000 for income.
The decision was appealed to the Supreme Court who held that as Mrs Ilott had not been financially dependant on her mother, she did not require an income and that any provision was reasonable given the circumstances. Her original award of £50,000 was therefore reinstated.
Looking at more recent cases which have been in the public eye is a recent ruling by the High Court which determined that a claim brought by 3 sons for a share of their mother’s £1 million family home was unsuccessful. Mrs Rea died in July 2016 at the age of 86 and in her final Will which she made in 2015, she left her South London home, which was her main asset and worth roughly £1 million, to her daughter Rita. She had left a note with her Will which stated that her sons did not help with her care in comparison to her daughter who had been her sole carer for many years and therefore if any of the sons challenged her Will, she wanted any claim from them to be defended on the basis she did not believe they should have a share in her estate.
It was found that her 2015 Will replaced an earlier Will in 1986 which had left her entire estate to be shared equally between her 4 children. The sons who were written out of the mother’s Will, brought a claim on the basis that their sister had “poisoned” their mums mind by claiming the sons had abandoned their mother so that she would solely inherit the family home. They relied on the grounds of undue influence and made an application to strike out the 2015 Will and reinstate the earlier Will made by their mother in 1986.
It was ruled that Mrs Rea was very strong minded and at the time she made her revised Will, it was clear she knew what she was doing. Therefore, her mind had not been influenced and she made the decision to write her sons out of her Will on her own accord. For further information please see our earlier article – https://www.willwriters.com/blog/claim-of-undue-influence-unsuccessful-after-court-rules-in-daughters-favour/
More recently, this month, there is yet another case in the public eye where a 77 year old has brought a claim against his niece, Lady Natalie Wackett, for half a share of his father’s £2.4 million fortune on the basis that he was written out of the Will for being an “unwanted baby.” He was born during World War 2 while his father was serving in the RAF and at the time his parents were unmarried. It was for this reason that his parents grew to resent him and favoured his siblings instead.
Mr Johnston, the claimant, said his parents always resented him and his mother often told him that she “would have been a Hollywood star if it wasn’t for you” as she had always dreamed of being on screen. It was relevant however that his father had promised that the income generated by the family business would “provide me with an income for life.”
As he grew older, the relationship continued to be strained between Mr Johnston and his father which led to his father cutting him out of the family inheritance and instead leaving all his inheritance to his granddaughter.
Mr Johnston argued that he is hard up and works as a bus driver to keep afloat. This is in comparison to his niece who was given her grandparents entire fortune and has the family business.
Lady Wackett in comparison argues that he was not an “unwanted war baby” and was loved by his family. Her case is that his gambling habit along with cheating the family business is what drove the family apart. In addition, he had not looked after his parents as they grew older, did not reconcile with them or even attend their funerals.
The case continues.