In the past few years, there has been a significant increase in the number of people challenging or contesting a will. Challenging a will is an option for those who feel they have not been properly provided for under its terms.
We act for beneficiaries, executors, trustees and dependants. We act for those who wish to challenge a will, we defend against probate claims, or we assist in resolving inheritance disputes.
a) Challenges to the validity of a Will
There are certain formalities under the Succession Act 1965 on how a will must be made. If someone suspects that these rules have not been followed, an allegation can be made that the proper formalities were not observed, and that the will is fundamentally flawed. This can easily be avoided by having a well-drafted will prepared by your solicitor, who will make sure that all the relevant rules have been complied.
A more common ground upon which a will’s validity is challenged is where it is alleged that the person making their will is not capable of doing or lacks the necessary capacity.
The law presumes a will to be valid unless it can be proved otherwise. The person making the challenge must show that the person who made the will did not understand that they were making a will, that they did not know the extent of their estate or how they wished to dispose of it. Where a challenge is made, it is usually on the basis that the person suffered from a mental illness, such as dementia or was under the influence of a substance at the time the will was made. The crucial factor here is the person’s capacity at the time the will was made, not before or after.
A will can also be challenged on the basis of undue influence or duress if it can be shown that the person making the will did not make the will voluntarily or that they were pressurised by a third party. For a will to be successfully challenged on the grounds of undue influence, there must be proof of pressure which over-rides the free will of the deceased.
Last will and testament papers and key as symbol of property.
b) Can a spouse be excluded from a Will?
A surviving spouse has an automatic “legal right share” to a portion of the deceased’s estate, regardless of the terms of any will. If the will does not provide for this, they can enforce their entitlement of:
- One-half of the estate if the deceased left no children
- One-third of the estate if the deceased left surviving children
A spouse is entitled to make a gift to their spouse in a will, but it should be specified whether this devise will be in addition to or in satisfaction of the Legal Right Share (LRS). If not, the surviving spouse must choose or “elect” which gift to take under the will.
A personal representative must notify a surviving spouse of the right to choose. This right of election or right to choose is not exercisable after the expiration of six months from the receipt by the spouse of such notification or one year from the first taking out of representation of the deceased’s estate, whichever is the latter.
c) Exceptions to the Legal Right Share?
The legal right share can be lost if the spouse or civil partner is convicted of the murder, manslaughter or attempted murder of the deceased spouse/civil partner or convicted of an offence against the deceased person that carries a sentence of more than 2 years.
d) Claims of undue influence
The person challenging the will on grounds of undue influence must provide positive proof that the testator (the person who made the will) was so pressured that their own free will was overpowered.
Merely convincing or asking someone to leave you something in their will is not considered undue influence. It must cross the line into intimidation or severe manipulation
e) Children do not have automatic inheritance rights
Unlike spouses, children do not have automatic inheritance rights, but s.117 of the Succession Act 1965 permits children to make an application to the court for relief if they feel their deceased parent has not made proper provision for them in accordance with his or her means, whether by will or during their lifetime.
The court shall consider the application from the point of view of a “prudent and just parent”, taking into account the position of each of the children of the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.
f) Costs
Usually, in litigation, the costs of bringing the matter to court are borne by the parties and, most often, by the losing side alone.
However, when a will is contested, the court usually allows costs to be taken from the deceased’s estate if it is satisfied that there were reasonable grounds for starting proceedings and that they were conducted in a bona fide manner.
The problem is that you might start with an estate worth money, but if you have to take out the litigation costs, that sum will be much less, and everyone might be the loser.