Challenging a Will – grounds for contention

The contents of a Will has the power to delight… an unexpected windfall or a treasured possession left to you perhaps. It can also rip a family apart, give new life to decades old feuds and generally bring out the VERY worst in people.  But what can you do if you feel proper provisions haven’t been made or, you’ve been cut out completely and all the money has gone to the local animal charity? Is challenging a Will to get what’s rightfully yours possible? Well, maybe…

Challenging a Will is becoming more commonplace

In fact a there was recently a landmark victory in the case of Ilot v Mitson when the court rule in favour of the challenger. In her Will Mitson had left explicit instructions that her daughter – Ilott – was to receive nothing, leaving her entire £500k estate to 3 animal charities. After challenging the Will, a 10 year court battle Ilott was awarded £164,000 read the full story here.

For obvious reasons you can’t just go about challenging a Will willy nilly. There are grounds set out by law. You have to be a spouse, former spouse that hasn’t remarried, child, step child, lived with the deceased for over 2 years or any other dependent to bring a challenge to Court. Broadly speaking the grounds for contention – challenging a Will – are…

Lack of Formalities
– There is something wrong with the Will itself, usually that it is has not been witnessed correctly.

Lack of Mental Capacity
– The person who made the Will lacked sound mind when doing so. As 80% of nursing home residents suffering from varying degrees of dementia it’s no surprise this is the most common reason people will contest a Will.

Lack of Knowledge and Approval
– Because the person who made the Will didn’t know what was in it. It’s generally assumed that if a person has signed their Will they know what’s in it. Challenges are often brought on these grounds if there is something suspicious about the Will for example the person that prepared it stands to benefit, it’s not signed properly or the testator was physically unable to understand.

Undue Influence or Fraud
– Because the Will was obtained through criminal or wrongful acts of third persons. This means that the testator was coerced into making their Will and that it does NOT reflect their wishes. Perhaps the most difficult grounds on which to challenge a Will as the onus of proving coercion lays with the challenger.

Later Wills
– Because another Will was made more recently. What you may not know is that a Will does NOT have to have a date to be valid. The most recent Will will of course be followed but you’ll need to ‘prove’ this to Court of Probate with serious implications if the Court can prove a Will has been obtained or used wrongly.

The Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA)
– Because the Will failed to make reasonable provision for a beneficiary. It’s not unheard of for a testator to use their Will as a final act of revenge or cruelty to their family. The IPFDA was created to allow certain people (Spouses/children) to apply to the court if they feel the Will does not make adequate provision for them. Applications for IPFDA have to be made within six months of grant of probate. So don’t hang about.

So, the answer is yes. If you feel that you’ve been unfairly treated and you have a case that falls under any of the above reasons challenging a Will IS possible. While the Mitson V Ilott case has set a precedent of sorts it’s not thrown the door wide open it’s, at best, ajar. If you are considering challenging a Will, find yourself a lawyer that specialises in contentious probate and be prepared for what could be a long drawn out and EXPENSIVE legal battle.

What the ruling does do however, is reinforce the importance of having a professionally drafted Will. But not only that, you must ensure that your Will and accompanying letter of wishes – this is where you detail your reasons for perhaps, disinheriting someone – is kept fully up to date, especially if you have a substantial estate.

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