The difficulties of challenging a will
Challenging a will comes at a high price. Not only can it be extremely expensive, but it will also take a high toll in terms of emotional effort.
Not only do you have to contend with the legal issues of your challenge, but, if your challenge is against a family member or close friend, then you may well be close to these people and they are unlikely to want to lose their inheritance without a struggle.
Despite this, it doesn’t seem to deter people from challenging the wills of deceased family members. In fact over the past twenty years, the number of individuals challenging wills has increased. It isn’t easy to identify with any certainty why this is, but as more and more people become homeowners and house prices continue to rise way above inflation, the amount of money involved in people’s estates has certainly increased.
Another factor influencing the increase in challenges could be the increasing number of people with complex family structures. Ex-wives and children from different marriages mean that there are more people with genuine claims to part of an estate than in the past.
The rules regarding challenging a will are quite strict. For example, if you were considering challenging a will on the grounds that you have been inadequately provided for, you have to make your claim within six months of the grant of probate. If you are considering such an action you should seek legal advice as soon as possible.
On what grounds can you challenge a will?
Typically, there are four grounds for challenging a will in England and Wales.
- The Inheritance (Provision for Family and Dependants) Act 1975. This is the only statutory means of arguing that you were not left enough in the final will. In order to substantiate such a claim, a claimant must overcome two main objections. First, they must be eligible under the Act to bring a claim. Secondly, they must be able to prove that, immediately prior to the death, they were dependents of the deceased. A common example of these circumstances would be the children of co-habiting couples.
- Demonstrating undue influence. To challenge on these grounds you would have to prove that the deceased was unfairly influenced when drawing up their will through force, manipulation or deception of some nature.
- Demonstrating a lack of testamentary capacity. To succeed with this claim you would need to show that the deceased did not understand what they were doing when they drew up the will. This could be through mental or physical illness. It is exceptionally difficult to succeed in a claim of this nature, mainly due to the fact that the main witness – the deceased – is unable to give evidence.
- Claiming the will is invalid. It could be that you feel the will is a forgery, or that the proper legal process wasn’t followed in drawing up the will. With people looking at ways in which to save money, there has been an increase in DIY Wills. Whilst they may save money at the time, if they are not executed properly, they may not be legally binding and can lead to such a challenge.
If you are considering challenging a will, you should seek professional advice as soon as possible.
You should also be prepared for the possibility that your claim could fail and that you could be left with some extremely high legal costs.
Don’t let the law decide how to divide your property when you die, arrange a will today!