How do I Dispute a Will

• The deceased’s lack mental capacity to make the will, known as testamentary   capacity
• The deceased was unduly influenced into making the will
• The will is a forgery
• The will does not comply with the necessary formalities
•  The deceased did not know and approve the contents of the will

It is not uncommon for a will to be challenged on a number of different grounds.

The evidence needed to establish a will can depend on the ground upon which it is challenged. The most common pieces of evidence can be the will file (often obtained by making a Larke v Nugus request), the deceased’s medical records and witness statements from people who knew the deceased or were involved in the preparation of the will.

It is also common to obtain an expert report on the deceased’s mental capacity or on whether the will is a forgery, if those are the grounds on which the will is being challenged.

If you are successful in challenging the validity of a will, then the estate will be distributed in accordance with the previous will, and it is possible to challenge more than one will. If there is no previous will, the estate will be disputed in accordance with the rules of intestacy.  Therefore, before considering challenging a will, you need to establish whether you will be better off under the previous will, or the rules of intestacy.

Alternatively, you may want to dispute a will as the deceased promised you something that the will does not refer to. For example, the deceased may have promised you their house. In that circumstance, you could consider a claim called proprietary estoppel. These claims can be successful where the deceased made a promise to someone, who then relied on that promise to their detriment, but the deceased did not fulfil the promise.

You may also want to consider a claim for reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

This enables certain people to make a claim against the estate for financial provision if the will/rules of intestacy either do not provide for them at all, or do not provide enough provision. The people who can make a claim are:

• Spouse or civil partner
•  Ex-spouse or civil partner
•  Children, including adult children
• Someone treated as a child by the deceased
•  Someone maintained (either wholly or partially) by the deceased immediately before their death

These claims must be made within 6 months of the grant of probate being issued. It is possible to start a claim before, and claims can be made after the 6 months with permission from the court.

The court has the power to order a number of different things, such as lump sum payments or transfer of a property.

How much the court will award depends on the factors of the individual case. For anyone except spouses, the amount they receive will be limited to what they need for their maintenance.

When considering the financial resources of the person making the claim, the court will also consider their earning capacity and their financial obligations and responsibilities.

There are further factors the court considers. For example, for spouses, the court will look at spouse’s age, the length of the relationship and the contribution the spouse made to the welfare of the family such as caring for children. The starting point for a spouse is what they would have received if the relationship had ended in divorce. However, this is only a starting point which can be deviated from.

For a child or someone treated by the deceased as a child, the court will look at the manner in which the child was, or might have expected to be, educated.

For people treated by the deceased as a child, the court will also consider whether the person making the claim was maintained by the deceased and if so, for how long and on what basis). The court will also look at whether the deceased assumed responsibility for their maintenance, whether the deceased maintained them knowing that they were not their own child and the liability of anyone to maintain the person making a claim.

For claims made by people being maintained by the deceased, the court will consider for how long, and on what basis, were they maintained and whether (and if so, to what extent) the deceased has assumed responsibility for their maintenance.