There are only limited circumstances in which you can challenge a Will or Codicil*.   These are:-

• Lack of testamentary capacity – this relates to the state of mind of the person making the will at the time they did so.
• Lack of knowledge and approval – whilst the person making the will might have the necessary capacity, they must also know and approve the contents of their will.
• Lack of due execution – meaning that the formalities of the making or signing of the will were not complied with.
• Undue influence – here is it necessary to prove that the person making the will was actually subjected to undue influence by another person who may benefit.
• Fraud and forgery.

Such claims can be very difficult to prove but we can advise if you are concerned that the will of a loved one could in someway be invalid for any of these reasons.

*A Codicil is a legal document made a later date which amends certain parts of a Will whilst leaving the remainder of will as originally drafted.

A claim under the Inheritance (Provision for Family and Dependents) Act 1975 is usually known as an “Inheritance Act claim”, or “1975 Act claim”.  The Act provides a framework for certain classes of people to apply to the Court if they do not consider that the Will of a deceased person, or Rules of Intestacy, made reasonable financial provision for them.

The classes of people who can (under the current amendments to the Act) apply include: spouses and civil partners, former spouses and civil partners (provided they have not remarried), cohabitees of more than two years in certain circumstances, children or those treated as children of the deceased, and those being maintained by the deceased.

When considering an application, the Court will take into account a number of factors including the financial resources and needs of the applicant(s) and any other beneficiaries, both currently and in the future, the size and nature of the estate, any disabilities of the applicant or other beneficiaries, any obligations of the deceased and other factors including conduct of the parties involved.

Where typically claims by adult children failed in the past, some high profile decisions such as Ilott v Mitson  have potentially opened the door somewhat to more successful claims by adult children but realistically only if their financial needs warrant it.

The time limits for bringing a claim are tight  – only 6 months from the date of Grant of Probate or Administration, so it is important to take advice at the earliest opportunity.

“One day son all this will be yours”. It might sound like a bit of a cliché but promises such as these might have been made, but when dad has passed away the person expecting to receive something under the terms of the will is disappointed to find out that the promises were not kept.  Claims based on proprietary estoppel seek to redress this where the claimant can show:

• that promise(s) or representations were made to them;
• that they relied on those promise(s); and
• suffered a (financial) detriment as a result.

Such claims appear to be becoming more frequent, and there have been a number of recently reported cases involving farming families or family businesses.  Typically, the child has worked long hours for little pay with the expectation that the family business will come their way.  On occasion claims have even been brought before the parent involved has died if their child has concerns about the future plans of their parent.

The Court has a number of different options open to it when deciding such cases in favour of the claimant including enforcing the promise and meeting the claimant’s expectations, or compensating the claimant for the detriment they have suffered.

A caveat is a notice in writing which will prevent a Grant of Probate being issued.  It is used by a person considering making a claim against the estate as a way of preventing the estate from being distributed until they have brought a probate claim, giving them time to investigate whether they have grounds for a claim. It will remain valid for 6 months but can be renewed.  The executors of the estate may apply to “warn off” the person who entered the caveat, who is then required to enter an “appearance” setting out their interest in the estate

The caveat procedure should not be used to delay the grant of probate where a claim under the Inheritance Act.