Can your will or estate be contested?
Claims on the validity of wills and whether a will makes ‘reasonable provision’ for a claimant have become more common in recent years.
The Inheritance (Provision for Family and Dependants) Act 1975 gives the court powers to order financial provision from a deceased’s estate to benefit certain applicants.
Section 1 of the act allows certain people to bring an application to the court due to lack of reasonable provision from the deceased’s estate, such as a spouse or civil partner or a child or even someone who was financially dependent on the testator (person who makes the will), but who has been omitted from the will or estate.
The court would need to decide whether the deceased’s estate did not provide the applicant with reasonable provision and if so decide whether to award the applicant with provision from the estate and if so, how much.
- Key Points:
- The Testator (person making the will) must have capacity to understand the nature of making a will and its effects: this being that the testator must know that they are making a will to dispose of their assets AFTER they have died.
- They must understand the extent of the property of which they are disposing: the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
- Be able to comprehend and appreciate the claims to which they ought to give effect: they must know who might have first claim on their property.
- An example could be that the testator is married and therefore the spouse would have claim upon the estate.
- They must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
No undue influence
Undue influence may come in the form of forcing the testator into making a will in the third party’s favour, by physical or emotional threats or by poisoning the testator’s mind against another person.
Simple persuasion is not seen as undue influence and for there to be undue influence there must be an element of coercion. It is often said that a testator can be led to writing a will in a certain way but cannot be driven.
What are you leaving on line when you die?
Other ways parties might attempt to have a will set aside could include:
- The testator does not have knowledge and approval of the contents of the will.
- That the will has not been signed and witnessed (attested) correctly.
- That the will is a forgery.
- The will was made because of fraud.
- The will has since been revoked.
- A previous will was a mutual will.
