Nasima Ansary in our contentious probate team recently wrote an article for Kent Life
Dealing with the death of a loved one is always difficult and this can be compounded if you subsequently discover you have not been included in their will. If you have been left out of a will, there are various options available to you depending on whether the will may be invalid, or on whether you can claim “reasonable financial provision” under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).
When is a will invalid?
A will is seen as invalid in the below circumstances:
- The will was not signed or witnessed correctly
- The person making the will (the testator) did not have the necessary mental capacity to make a will, for example due to a medical condition such as dementia, or other compromising conditions such as grief, depression and illness
- The testator lacked knowledge and approval, meaning that whether they had capacity or not, they did not understand the content and effect of their will. This is particularly relevant where the will is complex or involves major changes compared to the previous will.
- The testator was forced into making a will
- The will was forged.
What happens if I am successful in challenging the validity of a will?
If you are successful, a distribution of the estate will take place in accordance with the previous will, if there was one. It is therefore sensible to consider carefully whether the testator had a previous will, and whether this was beneficial to you, before embarking on a will challenge claim.
If there is no previous will, then the estate will be distributed in accordance with the rules of intestacy. These rules should be approached with caution and advice should be sought as, for example, co-habitees are not included under them, and a spouse will inherit before children.
What if the will is valid, am I eligible to make any other claim?
You may be able to make a claim for “reasonable financial provision” under the 1975 Act, if you are a spouse, former spouse, cohabitee, a child or child of the family, or any person treated as a dependent.
In order to assess whether an order should be made in your favour, the court will take into account your financial position and this will be weighed against various factors such as the net value of the estate, and the needs of other beneficiaries of the estate.
The law relating to will challenge claims and 1975 Act claims can be complex. A 1975 Act claim also has a limitation deadline to be aware of. If you think that you have a claim, then we will be happy to discuss this with you email@example.com
This article first appeared in Kent Life.