Posted on 11.2.16 by Danielle Clements
‘Last Will and Testament’ is a legal document that sets out of an individual’s final wishes in regards to their property and assets to come into play when they die. According to the law, an individual who has a will drafted (a testator) can generally leave their assets to whoever they want to. This could be family, friends, charities, political parties or any other acquaintance they want to benefit.
But what about if they have left someone out who really should have benefitted? Is it possible for a will to be unfair? What rights does another person have to challenge a will? Is it even possible?
Grounds for Contesting a Will
If you wish to contest a will there must be a valid reason behind your challenge. Just thinking you should have got a bit more or that a certain item was promised to you aren’t really valid reasons to contest. There are, however, a number of situations as to why a challenge may be mounted:
- Validity – the will wasn’t completed to the correct legal standards
- Capacity – the testator did not understand what they were completing at the time and lacked ‘testamentary capacity’
- Reasonable Provision – if a will doesn’t ‘reasonably provide’ for certain family members and/or close partners a challenge can be made
- Undue Influence – where a person puts pressure and takes advantage of the person making the will
- Fraud – changes were made to the will fraudulently
- Incorrect estate administration – if you think the way the executors are administering and distributing the estate isn’t in accordance to the terms of the will.
Who can Dispute a Will?
In simple terms, anyone can generally bring a claim against an estate if they are based on one of the above reasons; the only exception is ‘reasonable provision’. For any of the other areas, such as validity, capacity, undue influence etc, there are no strict definitions of who can challenge the will, although you would normally expect it to be a person who has an interest in the estate or someone on their behalf.
‘Reasonable Provision’ is different from the other areas. Only certain categories of people can bring a claim contesting the terms stated in a Will based on a dispute of this type. They are:
- The deceased’s spouse or civil partner
- A former spouse or civil partner if the testator did not remarry
- Child of the deceased
- Cohabitant of the deceased
- A person maintained by the testator before they died
- A person the deceased treated as a child of the family
- Mistress or lover in some circumstances
If you do fall into one of these categories and believe you may have a valid reason to challenge the will, it may be possible for a solicitor to make a legal challenge against it resulting in an amendment or invalidation. Disputing a will, commonly known as an Inheritance Tax Claim, does have a time limit, so it’s better to seek legal advice sooner rather than later. Give us a call on 0161 930 5151.