Inheritance disputes – have I really got a claim?
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The death of a loved one is always distressing, and disputes arising around subsequent inheritances can only make the situation even more difficult.
Tim Jones, solicitor at law firm Ellis-Fermor & Negus, reassures those finding themselves in this upsetting position that solicitors can often provide help and advice. Here he outlines some of the most common questions he is asked around inheritance – and offers his answers:
Q: Can I challenge the validity of a Will?
The validity of a Will can be challenged for a number of reasons. Those reasons include, but are not limited to:
- Lack of “testamentary capacity” – in simple terms, where the person making the Will lacked the necessary degree of understanding as to the nature of their act in making a Will. Claims of this nature are likely to become more common in the future, with both life expectancy and the prevalence of cognitive disorders like dementia increasing over time.
- Lack of “due execution” - the signing and witnessing of a Will must comply with long-established statutory requirements. Failure to comply with those requirements will invalidate the Will.
- “Undue Influence” - where the person making the Will was influenced by a third party (often a family member) to make a Will on particular terms against their own true wishes.
Advice should be sought without delay if concerns arise about the circumstances in which a Will was prepared or signed.
Q: Where do I start when it comes to challenging a Will?
The first thing to do is to try to obtain a copy of the Will and other related documents. You can sometimes encounter resistance with this and sometimes it is also a case of establishing whether a Will actually exists. If you get in touch with us early on, we are often able to assist.
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Q: Is there a time limit for challenging the validity of a Will?
There is generally no time limit for contesting the legal validity of a Will, but advice should still be sought at the earliest opportunity. It will be much more difficult to resolve issues relating to a potentially invalid Will if the deceased’s estate has already been “administered” (i.e. the deceased’s debts have been paid and their assets distributed) in accordance with the Will.
Q: Even if a Will is legally valid, am I able to challenge its contents?
Under the Inheritance (Provision for Family and Dependants) Act 1975, you may apply to the court for provision from the deceased’s estate if they consider that the Will (or the “Intestacy Rules”, which determine who inherits a person’s estate if they die without having made a valid Will) does not make “reasonable financial provision” for you.
You may be able to make a claim if you are:-
- the spouse or civil partner of the deceased;
- a former spouse or civil partner of the deceased who has not later remarried or entered into a subsequent civil partnership;
- a child of the deceased;
- any person who was treated by the deceased as a child of the family (most commonly a stepchild);
- a person who was living in the same household as the deceased, as ‘husband or wife’ or as a civil partner of the deceased for a period of two years ending immediately on the deceased’s death (generally known as a “cohabitee”); or
- any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased.
Where a claim is made, the court will first consider whether or not the person bringing the claim has been reasonably provided for by the deceased upon their death (taking into account a range of relevant considerations) and, if not, the court will then go on to consider the level of provision that should be made for that person’s benefit from the estate.
A claim under this legislation must be brought within six months of the date of the “Grant” (the document issued by the probate registry giving those entrusted with administering the estate the authority to do so). Advice should therefore be sought without delay where a claim is under consideration. It is possible to submit a claim after the time limit has expired, but there can be no guarantee that the court will permit such a claim to proceed.
Q: How do I know if I have got a viable claim?
This may be hard to predict because no two cases are the same, but this is a good reason to take professional advice from a solicitor as we are able to help explain your options.
Q: Will I have to go to court if I bring a claim?
Contesting matters through the court system can be time-consuming and costly.
For these reasons, many disputes regarding Wills are resolved by agreement between the parties, without the need to attend court. We will always explore whether or not an out-of-court resolution is possible for our clients.
For further information please visit ellis-fermor.co.uk, email Tim.Jones@ellis-fermor.co.uk, call 01773 821665 or contact Tim Jones at Ellis-Fermor & Negus, 6 Derby Road, Belper, Derbyshire, DE56 1UU.