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What to do if you think you’ve not been properly provided for in a will

by | Feb 12, 2018 |
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For a family the administration of an estate can be a difficult time. With grief still fresh, organising the material elements of somebody’s life is upsetting. At worst though, it can be a source of conflict between family members.

If no will has been made

If the deceased did not make a will, the estate will be distributed according to the intestacy rules. These rules are inflexible and can lead to disputes between the beneficiaries and others who don’t believe the result to be a fair reflection of their personal relationship with the deceased.

Even if a will has been written individuals may feel they haven’t been properly provided for.

Disputes are particularly prevalent when it comes to second marriages, step-children and any persons ‘treated as children’ of the deceased.

The intestacy rules, for example, often leave a spouse or civil partner as the primary beneficiary of the estate. Some children may feel disgruntled, believing they should be entitled to a greater share.

Contesting a will

So, what if this happens to you? If you’re in a position where you feel you’ve been unfairly treated, what can you do? At this point you may wish to seek legal advice to see whether you can challenge the way the estate is to be divided.

How you go about this depends on the nature of the objection.

1. ​Technical grounds

If you consider the will to be invalid, then we need to look at it in detail and establish if it fails to meet the formal legal requirements.

2. Propriety Estoppel

In short this is where somebody promises to do something and the recipient of that promise relies on this to their detriment. For example, where the testator has promised to leave his house to his son on the proviso that his son fixes and maintains his roof over many years, where the testator then goes on to leave his house to somebody else in his will the son may be entitled to bring a claim to have that promise upheld.

3. Challenge the capacity of the testator

Do you think that the deceased didn’t understand the document that they were signing? We may need to look at the medical history of the deceased. If they lacked the required capacity when preparing the will, it may not be valid.

To provide a further example using another of our past cases, we dealt with a situation where our client (one of two children of the deceased) was left one third of their mother’s estate, while the other two thirds of the estate were left to our client’s brother.

In order to contest this, we obtained medical records which suggested her mother lacked the capacity to understand the implications of what she was signing. In the light of these records our client’s brother agreed to vary the terms of the will, which meant our client received half of the estate rather than the third that was due to her under the terms of the will.

4. Other grounds for contesting a will

There could be the opportunity to dispute the validity of the will, on the basis that perhaps the testator may have been subject to undue pressure.

In addition to contesting the validity of the will you may be able to bring a claim under the Inheritance (Provision for Family & Dependents) Act 1975, depending on your relationship with the deceased. The Court has the power to vary the will or the intestacy in favour of certain family members and dependants. When considering whether you have a claim, we will need to look at the value of the estate and your financial circumstances to establish the strength of such a claim.

What should I do if I want to contest a will?

In the first instance, contact your solicitor to get a copy of the will (if any). This will then enable them to scrutinise it and determine the best course of action to take. Should they believe there are sufficient grounds to contest a will, they can then advise you on the most suitable legal avenue to go down in order to give you a favourable and fair outcome.

Getting in touch

If you would like any further information about contesting a will, please contact Tom McInerney, Associate and Private Client Solicitor, on 01869 222304 or email tmcinerney@se-law.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

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