What Happens when you Contest a Will?

We have written a number of articles relating to the question of how can a disheartened beneficiary contest a Will?

This is something that we are seeing a substantial increase, but no official figures have been provided to determine what percentage of wills are being contested.

We suspect there will be figures produced sometime in the near future.

The court were taking into account the following guidelines when considering a claim brought under the Inheritance (Provision for Family and Dependents) Act 1975, which is the act that allows certain claimants to make either a claim on the estate or indeed contest a will.

The following guidelines are not comprehensive, and each case relies on its own individual merits, however the items below are the general items under which a challenge or contesting a will can take place;

  • Any financial needs and resources of the beneficiaries and applicants (if they are not a beneficiary).
  • Any obligations and responsibilities the deceased had towards any beneficiary or applicant.
  • The size and nature of the estate.
  • Any mental or physical disability of the beneficiary or applicant.

When considering claims brought by a spouse or civil partner, the courts will consider the age of the applicant, and the duration of the marriage or civil partnership if one exists.

The test when considering the standard of provision is ‘such provision as would be reasonable in all the circumstances to maintain the applicant’.

This often requires a very detailed account of the claimant’s financial position, and what is required, particularly if there is any ill health or mental conditions to be consider.

If the applicant is successful, then the court will decide what awards should be made. The will remains valid, but the way the assets are distributed will be varied by the court order to make provision for the applicant. This varies by case as what award is appropriate, and will depend on the circumstances of the applicant, the size of the testator’s estate, and what assets are available.

For the invalidity claims the outcome is very different. If the claimant is successful in bringing their claim and the testator has made an earlier will, the estate will simply be distributed in accordance with the earlier will. However, if the testator had not made an earlier will, their estate would pass in accordance with the laws of intestacy.

Is there a Time Limit for Contesting a Will?

Yes, but again this varies. A provision claim must be brought within 6 months of the Grant of Probate. It is therefore advisable for executors not to distribute the estate for at least 6 months from the Grant of Probate, or even wait a further 4 months after that, as the applicants has 4 months from the issue of proceedings to serve them on the other side. If an executor waits before distributing the estate, he is protected from any liability under 1975 Act.

It is very important to understand, that the claim in such circumstances is made against the executors personally, and not the estate.

For claims that the will is invalid, there is no time limit.

What Happens if an Executor or Trustee Contests the Will?

If an executor or trustee contests the will for any reason, they simply need to renounce their position as there would be a conflict of interest if they continued to act. It is always advisable to appoint substitute executors and trustees. But this very much depends on each individual case. It may well be that from the outset the executor or trustee is contesting the will, but the family generally accept the position that has been argued, and it therefore becomes a question of reaching settlement in a non-contentious way.

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