Contested Wills and Inheritance Claims - Questions & Answers

Q: Can I challenge a will?

A: There are several ways a will can be challenged:

Lack of testamentary capacity
A will may not be valid if it can be shown the person making it did not have testamentary capacity at the time that it was signed. The test applied is that the testator must have understood the extent of his or her property and appreciated the claims to which he or she should give effect. It is for the person challenging the will to prove the absence of testamentary capacity.

Undue Influence
To establish undue influence the person challenging the will must prove there has been coercion in its preparation, rather than persuasion which is legitimate. The burden of establishing undue influence is high and will require detailed evidence of the way in which it is alleged the deceased was influenced to make the gift.

Failure to make adequate financial provision
Claims against an estate are permitted by the Inheritance (Provision for Family and Dependants) Act 1975. The basis of the claim is that the will does not make any, or reasonable, financial provision for the applicant.

A claim can be made by:

• a spouse or civil partner;
• a former spouse or civil partner who has not remarried or entered another civil partnership;
• a child of the deceased;
• any person (not being a child of the deceased) who in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of that relationship;
• any person (not included in the previous paragraph) who can show that he or she was maintained by the deceased in the period immediately before death;
• any person who at the time of death had been living in the same household as the deceased as his or her husband or wife or civil partner during the whole period of two years ending with the date of death.

Establishing a right to bring the claim is simply the first step. It will then be necessary to show that appropriate financial provision was not made.
 

Q: How can I establish whether a Grant of Probate (See Administration of Estates questions & answers) has been obtained?

A: A search can be made at the Probate Registry which will reveal whether a Grant has been issued in a particular estate.

Q: What steps can be taken to prevent the issue of a Grant of Probate?

A: If you have concerns about a will or an administration of an estate you must first establish whether a Grant of Probate has been issued. If it has not it may be possible to prevent the issue of a grant of probate by applying to the Probate Registrar for a document known as a caveat. Before making such an application you should seek specialist legal advice as the consequences of doing so can be very serious.