How to challenge an unfair Will

One of the most common forms of enquiry we receive relate to our clients feeling that a Will is unfair as they have not been adequately provided for by a family member or loved one. In these circumstances, it should always be remembered that due to the principles of freedom of testamentary capacity (meaning that we are free in England to leave our assets to whomever we choose) it is not sufficient to challenge a will simply on the grounds that the terms are unfair or disappointing. The parameters for challenging a Will are clearly defined.

In circumstances where a client considers a Will to be unfair, there are various lines of enquiry which we consider. The most appropriate way forward/grounds for potential challenge will be determined by the individual circumstances of each case but below are a few examples of scenarios which may give rise to a valid claim to challenge a Will:

• If the Will’s terms are unexpected by members of the family, it might be that there is merit to making further enquiries surrounding the preparation of the Will. For example, the terms of the Will may be unexpected due to the testator lacking mental capacity to sign the Will or understand its terms;
• If a Will has been made without professional assistance it is also possible that the strict formalities provided in statute (Wills Act 1837) have not been complied with which would mean the Will is invalid;
• If the Will is unusually favourable to one individual and especially if it was made without the assistance of a professional, there may be grounds to challenge its validity on the basis of undue influence. This type of claim is relatively unusual and must be very carefully considered;
• If you, as disappointed beneficiary, were in a relationship with the deceased or in some other way financial dependant on them, there may be grounds for an inheritance claim pursuant to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975;
• If you consider that a Will may not be valid or that you may have another kind of claim against an estate it is important to act quickly as strict time limits apply to some of the options available.

Disputes which arise upon the death of a loved one are very challenging for a client to deal with. I and my team act for many individuals dealing with such claims and so we are adapt at handling the legal but also the emotional issues that will arise. The team has recently been recognised as leading specialists in this field by industry analysts, The Legal 500 (UK 2016) and our lawyers are also part of the Association of Contentious Trust and Probate Solicitors (ACTAPS) – the kite mark for this area of practice.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at lauren.day@ellisjones.co.uk or 01202 057760, or read more on our Wills, Trusts and Probate services.