Inheritance Tax  

When and how clients can contest a will

  • List the grounds for contesting a will and why inheritance disputes are rising.
  • Describe what a financial provision claim is.
  • Identify out of court dispute resolutions and how claims can be prevented.
When and how clients can contest a will

In recent years there has been a surge in inheritance disputes reaching court and attracting media attention, with dramatic headlines and human drama stories. 

However, the cases which attract media attention are just the tip of the iceberg and do not account for the hundreds, if not thousands, of inheritance claims being brought every year which, despite never seeing the light of a court room, often result in hard fought disputes and settlements leading to the redistribution of a loved one’s estate.

So why has there been an upsurge in inheritance disputes?

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One of the answers can be found in the changing socio-economic landscape we live in. Complex family structures can make the division of assets between second and third families seem contentious and create feelings of being hard done by.

The increasing value of estates is another contributory factor.

On the one hand, increasing property prices have made relatively modest estates worth fighting for and, on the other hand, economic uncertainty incentivises would-be claimants to seek a greater share of an estate.

In any event, there is no doubt that society has become more aware of the ability to challenge a will and, according to court statistics, more willing to see a challenge through to what is, inevitably, a bitter ending at trial. 

Inheritance disputes tend to focus on one of two areas: the first relates to claims for a greater share of an estate, and the second around the validity of the will itself, which can bring allegations of undue influence, lack of capacity to make a will and even forgery.

Grounds for contesting a will

Challenging the validity of a will is, as one would expect, evidentially difficult, given the person who made the will and is being challenged is no longer around and therefore unable to provide critical evidence.

However, when it comes to the letter of the law, there are various presumptions in favour of upholding a will which help avoid the courts becoming overrun with will validity disputes and protect our right of testamentary freedom.

Lack of due execution

For a will to be valid it must comply with requirements of the Wills Act 1837 which sets out that a will must:

  1. Be in writing, and signed by the person making the will (or by some other person in his/her presence and by his/her direction).
  2. It appears that the person making the will intended by his signature to give effect to the will.
  3. The signature is made or acknowledged by the person making the will in the presence of two or more witnesses present at the time. 

If it can be proved that a will has not been executed in accordance with these requirements, then it will be invalid and could bring into play any previous valid wills or the rules of intestacy, which govern how an estate should be distributed in the absence of a valid will.

Lack of testamentary capacity

Challenges to wills based on lack of capacity have increased almost hand-in-hand with our ageing population.

The Office for National Statistics has predicted that by 2066, 26 per cent of the UK’s population will be aged over 65.