You might expect to inherit property from a close relative when they die, particularly if the relative was your parent. However, until 1965 a person could use a will to leave their estate to whomever they pleased, regardless of their spouse or children’s circumstances. Section 117 of the Succession Act changed that by allowing a child to apply to court to challenge the will of their parent if the parent has not provided for them in their will or failed in their moral obligation to do so in light of the parent’s means. Such an application can only be made if the parent has made a will.
To contest your parent’s will under the Succession Act 1965, you will need to establish a need for provision to be made for you. The court will decide based on you and your parent’s full circumstances. Contact an experienced solicitor to bring an inheritance act claim.
Contesting probate when there is no will
When a loved one dies without a will (intestate), managing their estate can be challenging. A good solicitor will guide you through the process and help you to obtain your entitlements. The Rules of intestacy identify those who can inherit from an estate, but they may not be true to the deceased’s wishes or personal relationships. Your solicitor can help if you are dealing with:
- Disputes over the estate’s administration
- Failure to provide for the deceased’s unmarried partner
- Failure to make reasonable provision for a child or dependant
- An estranged spouse being named as a beneficiary
The rules of intestacy do not consider unmarried partners or any unwritten pledges the deceased might have made in their lifetime. If you believe that an inheritance has been unfair to you, your solicitor can help.
Lack of proper provision
If your parent’s will fails to make proper provision for you, you can make an application to the court pursuant to Section 117 of the Succession Act 1965 for a share in the estate. You need to demonstrate that the deceased failed in their moral duty to make proper provision for their child. Consult a solicitor immediately if you are considering such a claim because there are strict timelines for bringing a claim.
Section 117 sets out several criteria that the court can consider when deciding whether the deceased failed in their moral duty to make proper provision for the child including:
- The surviving spouse’s inheritance or the value of the legal right if the surviving spouse elects to take this
- The number of children, their ages and their life stages when the testator (will maker) died
- The testator’s means
- The age of the child contesting the will and their financial status and prospects
- Whether the testator made proper provision for this child before their death.
If you are considering such a claim, you should make every effort to identify what if any monies you received from the deceased in the past. You may not make a section 117 application if the deceased died without a Will because you are entitled automatically to a third of the estate.
This is an evolving area of law, and the criteria required may change.
Contesting a Will
The grounds for contesting a will are as follows:
- Lack of testamentary capacity
- Lack of valid execution
- Lack of knowledge and approval
- Undue influence
- Fraud or forgery
Lack of Mental Capacity
If someone did not have the mental capacity to make a will, it is referred to as a lack of testamentary capacity. In order to make a will, you must:
Understand that you are making a will
Be aware that the will identifies how your estate will be distributed after your death
- Understand the value of that estate and the assets
- Be familiar with the people who may have a claim on your estate (beneficiaries)
- Be free of any mental illness that may affect your ability to make decisions about how your estate should be distributed
For your will to be valid, you must be of sound mind and understand the implications of what you are doing. If you start to lose your mental capacity, it is important that you do not make changes to your will or draft a new will without undergoing a capacity assessment.
Pressuring or forcing somebody to write a will or change an existing one is called undue influence. To successfully challenge a will on these grounds, you will have to demonstrate “actual undue influence,” which means proving that specific assets were given to someone because the person making the will was manipulated or exploited. The Court demands a high standard of evidence for claims of undue influence, so you will need to show that there is no other reasonable explanation. Suspicion of undue influence might arise if somebody changes their will in ways that are:
- Surprising or last minute
- Damaging to them or their estate
- Conflicting with wishes they’ve expressed before.
This could be worrying if:
- The person who benefits from the changes was not named previously in the will
- They stand to receive a much larger inheritance because of the changes
- The deceased relied on them when the changes were made
- The deceased was fragile or ill when making the changes or new will and potentially more vulnerable to forceful persuasion.
Undue influence usually happens secretively and is exerted by people in positions of trust. This can make it difficult to prove. When considering such a claim, the court will seek evidence that the deceased would not have made the gifts in the will without being subject to influence.
Forged Will & Probate Fraud
Forged or fraudulent wills are invalid. These include wills that:
- Are faked by somebody who forges another person’s signature
- Cut a beneficiary out of a will because of false information
Probate fraud covers any sort of dishonest activity designed to gain personally from the estate of a deceased person. This could mean:
- Instructing a will writer while impersonating the testator
- Forging the testator’s signature on a will
- Forging a whole will
- Disposing of a will without permission
If the instructions in a will differ substantially from what you expected, probate fraud may have occurred. Anyone with an interest in an estate can challenge a forged or fraudulent will.
If somebody lacks the mental capacity to make a will themselves, a statutory will is made on their behalf. This can apply in cases of progressive illness such as dementia or if the individual has suffered a brain injury.
The person must be shown to have no understanding of the principles behind making a will and be unable to make a will by themselves. An application for a statutory will is then made to the Court of Protection.
If the person in question had made a lasting power of attorney, the person they appointed as attorney can make a submission to the Court of Protection to have a statutory will drawn up and approved. Otherwise, the Court of Protection appoints a family member, friend, or solicitor to act as a deputy on their behalf.
How much does it cost to contest a Will?
The cost of contesting a will depends on how long the process takes, the cooperativeness of the parties involved, and whether or not you have to go to court. Parties are encouraged to use dispute resolution methods such as mediation to reach a settlement, and this will reduce costs. Most disputes are settled out of court, and a good solicitor will do everything they can to ensure this is the case.
Costs you may have to consider include:
- Solicitor fees
- Disbursements (including the cost of copy medical records, Land Registry fees, etc.)
- Barrister’s fees
- Court fees
- Fees for a medical expert or handwriting expert.