Losing a parent can be extremely difficult to deal with. To then find out that you had been excluded from their Will would be further devastating news.
The number of Will disputes has risen drastically in recent years, with increasing numbers of adult children making claims against their parents’ estate.
Many people think that your Will is the final say, and that no one can go against these wishes. However, this position isn’t strictly true, and the court has, over the years, held that children can in some circumstances, make a claim against their parents’ estate – even if this would be against their parents’ wishes.
The well publicised case of Ilott was a controversial example of this. Mrs Ilott successfully challenged her mother’s Will, which didn’t leave her a penny. Instead her mother left her entire estate to random charities which she had no personal connection to. In this case, the court ruled that her mother had not made ‘reasonable provision’ for Mrs Ilott and awarded her a sizeable proportion of the estate.
Therefore, such claims can be successful, so what should you look out for if you want to challenge a Will?
Capacity
For a Will to be valid its maker must have had full mental capacity when they made it. In other words, they must have understood what they were doing. If the Will was homemade, and was made during a time when the deceased was suffering from a mental disorder (such as dementia) then this could be a starting point for challenging its validity.
However, if the deceased instructed a solicitor then they will have ensured that they had the requisite capacity before the Will was signed, so it is worth checking who was involved in helping the deceased make their Will in case this is relevant.
Undue influence
Another reason it pays to look into who helped someone make a Will is to see if there is any evidence of undue influence or pressure. For example if only one child of the deceased is left everything, and the other siblings miss out, there may be questions as to why that was. Again, check to see if the deceased instructed a solicitor, as they will have made subtle checks to ensure that the deceased was free of any undue influence to make their Will.
Reasonable financial provision
As mentioned above this is the most likely of arguments to succeed if wanting to challenge a parent’s Will. This claim can only be made by certain people*, but this includes children of the deceased of any age. A child can claim against their parents’ estate if that parent failed to make reasonable provision for them once they die – whether in their Will, or by not making one at all (under the rules of intestacy).
There are certain circumstances that the court will take into account when assessing any claim;
- The financial needs of the child;
- The financial obligations and responsibilities of the child;
- The size of the estate being left.
In particular, if the claim is being made by a child of the estate, a claim will only be successful to the extent required for that child’s reasonable maintenance. If the court is of the view that you are capable of sustaining yourself financially, then you are unlikely to succeed.
Such claims must also be made within six months of the grant of probate – so if you’ve been unfairly disinherited, don’t delay.
If you would like to contest your parents’ Will then contact Poole Alcock today to speak to a member of our team to find out whether you have a good claim. Our Litigation lawyers have a wealth of knowledge and experience in contested probate claims and would be more than happy to discuss your options.
*a spouse, a former spouse, children, children of the family (Eg stepchildren) and those who were financially reliant on the deceased
