Broadly speaking, there are two bases upon which the disposition of an estate under a will can be challenged. Those are that the will itself is invalid, and/or that the will does not make ‘reasonable financial provision’.
Before a disappointed beneficiary takes steps to challenge the validity a will, they would be well advised to consider the effect on the entitlement to the estate, should the challenge succeed. If the challenge is successful and there was an earlier will, the estate will be distributed in accordance with that earlier will. If there is no earlier will, the estate will be distributed in accordance with the rules of intestacy. It could be, therefore, that a potential claimant would receive no greater share of the estate even if they were to successfully challenge the validity of a will.
Wills are most commonly challenged on the following grounds:
The formalities of a valid will are set out in s.9 of the Wills Act 1837. This requires that:
With the growth of DIY wills, there has been an increase in the number of wills that do not comply with s.9 of the Wills Act 1837 and, consequentially, an increase in disappointed beneficiaries.
A will is automatically revoked by marriage or civil partnership. It can also be revoked under s.20 of the Will Act 1837 by:
The testator must have had mental capacity at the time of making the will. The uncertainty as to whether the Mental Capacity Act 2005 replaced the test, as set out in the historic case of Banks v Goodfellow [1870], has been resolved in the recent case of Walker v Badmin [2015]. The High Court has ruled that the common law Banks v Goodfellow test is ‘the correct and only test’ for testamentary capacity. A testator therefore must:
The testator must know and approve of the contents of the will. There is a presumption of knowledge and approval where a testator had capacity, and the will was duly executed. However, if suspicious circumstances surround the preparation or execution of the will, for example, where the main beneficiary assisted the deceased in preparing his/her will, that presumption can be rebutted, as it will ‘excite the suspicion of the court’. The greater the suspicion, the greater the burden on the person relying on the will.
There will be undue influence if a testator is coerced into making a will that they do not want to make. What amounts to coercion will depend on the strength of the will, or the vulnerability of the testator. Unlike the case of lifetime transactions, there is no presumption of undue influence inferred from the circumstances; actual undue influence has to be proved. The burden of proving that there was undue influence is on the person making the allegation.
Even if the will is valid, certain relatives and dependants can challenge the division of the estate under the will (or the rules of intestacy), by claiming under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) that it does not make ‘reasonable financial provision’ for them.
The categories of those who can make a claim are:
There are statutory guidelines the court must take into account when considering a claim under s.3 of the 1975 Act. These are:
In the case of an application by a spouse or civil partner, the court will also have regard to the age of the applicant and the duration of the marriage or civil partnership, and the contribution made by the applicant to the welfare of the family of the deceased.
While spouse and civil partners do not have to show that they are in financial need, or were financially dependent on the deceased, to successfully bring a claim, other categories of applicants will need to do so. The maintenance standard is applied and the standard of provision is ‘such provision as would be reasonable in all the circumstances to maintain the applicant’.
Please contact our Disputed Wills and Trusts Team by telephone on freephone 0800 0931336, or by email at willdisputes@ashfords.co.uk for a no obligation chat to see how we can help you.
