Solicitor Advice For Challenging a Will

A will can be challenged at any point and there is no specific time limit for doing so. We would always recommend you seek legal advice and act quickly in relation to such matters and notify the estate that you intend to challenge the will. If the matter is left too long, there’s a risk that the estate could be distributed before you’ve made a challenge. It’s best practice to often challenge the validity of a will before the Grant of Probate has been obtained.

If it’s necessary for you to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, this must be done within 6 months from the Grant of Probate.

In essence, anyone can challenge the validity of a will. However, we would normally expect this to be done by someone who had an interest in the outcome or an interest in the estate under a former will and that they want the court to recognise the earlier will and not the later one that has replaced it.

You’re entitled to investigate bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This act identifies specific people who can bring a claim if they do not stand to benefit under a deceased’s will or under the laws of intestacy. As someone who has been living as husband and wife for the 2 years prior to the deceased’s death, you are a person who is entitled to consider bringing a claim. After that, other specific requirements will be required by the court. After making a claim, the court would take into account your considerations in determining whether or not you should receive anything from the estate.

Other people who can bring a claim include children (including children who have been treated as a child of the deceased and even adult children), a surviving spouse or civil partner and any person who was being maintained by the deceased before their death.

If you wish to challenge the validity of a will, you should do it as soon as possible and before the Grant of Probate is obtained. You should prevent the Grant of Probate from being obtained by filing what is called a caveat at the probate registry. This stops the deceased’s estate and the people dealing with it from obtaining a grant.

If pursuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, this is usually commenced once the Grant of Probate has been obtained.

Firstly, we would check that the will was validly executed because if it was not, it would not take effect. The law is quite clear about the steps that need to be taken to validly execute a will.

If it was, we would look at the circumstances of the will being prepared and if it was done by a solicitor, we would invite the solicitor to give their comments on how they came to receive their instructions and any concerns that they may have had about the capacity of the testator. It may also be necessary to obtain your mum’s medical records.

As you can imagine these matters are all very fact-specific and vary greatly from matter to matter. We would therefore need to look at the whole matter and advise you on whether a valid challenge can be made.

A Letter of Wishes is not legally binding but is there to guide the executors of the will as to why the testator has made certain decisions in their will that may be found to be unusual or where, for example, they have treated siblings differently. However, the letter is not binding and does not prevent you from bringing a challenge to the will provided you have good grounds to do so or are entitled to do so under the Inheritance (Provision for Family and Dependants) Act.

Regrettably, it is a sad fact that people forget to make/renew their Wills and key people who ought to benefit from the estate do not.

Unfortunately, without a Will, the primary position is that the new wife is automatically entitled to everything as your father’s next of kin. Depending on the relationship that you have with the new wife it may be that you can agree amicably between you, that you will both take a share of your father’s estate.

If you cannot agree, then as a child you can consider applying to the Court under the Inheritance (Provision for Family and Dependents) Act 1975. A “child” also includes illegitimate, unborn, adult and adopted children. The Inheritance Act allows the Courts to consider whether reasonable financial provision should be made to you where a Will/intestacy (dying without having made a Will) fails to do so.

Depending on the circumstances of your matter there are certain factors that the Court will take into account including, but not limited to, the financial needs of you and the new wife, your age and the size of the estate.

If an application is going to be made you must do so within six months of the grant of probate/letters of administration so although this may be a distressing time you must act quickly.