Courts have wide powers to make alterations to a persons will, after the person’s death. It can exercise these powers if the will fails to achieve the intentions of the person who wrote it, as a result of a clerical error or a failure to understand the instructions of the person producing the will. In addition, if mental illness can be demonstrated at the time of producing the will then this can also lead to the courts intervening.
In order to get the courts to exercise their powers, an application must be made within six months of the date on which probate is taken out. If gifts or other are distributed and a court order is made to rectify the will then all must be returned to be distributed in accordance to the court order.
If any part of a persons will appears to have no meaning or is ambiguous then the court will look at any surrounding evidence and the testators intention and will rectify the will in the light of this evidence.
The right to dispose of property
In general, the law allows an unfettered right to dispose of a persons property as they choose. This however is subject to tax and the courts powers to intervene. The law has been consolidated in the Inheritance (Provision for Family and Dependants Act) 1975. Certain categories of people can now apply to the court and be given money out of a deceased person’s will. This can be done whether there is a will or not.
The husband or wife of the deceased can be given any amount of money as the court thinks reasonable. The 1975 Act implemented the recommendations of the Law Commission which felt that the surviving spouse should be given money out of an estate on the same principles as a spouse is given money when there is a divorce. This means that, even if a will is not made, or there are inadequate provisions then a surviving spouse can make an application to rectify the situation.
The situation is different for other relations. They can apply to the court to have a will rectified but will receive far less than the spouse.
The following can claim against a will:
The spouse of the deceased
A former wife or former husband of the deceased who has not remarried
A child of the deceased
Any person who is not included as a child of the deceased but who was treated by the deceased as a child of the family in relation to any marriage during his lifetime
Any other person who was being maintained, even if only partly maintained, by the deceased just before his or her death
There is one main condition under which a former spouse can claim and that is that they have not remarried. In addition, such a claim would be for only essential maintenance which would stop on remarriage. There is one key exception, that is that if your death occurs within a year of divorce or legal separation, your former spouse can make a claim.
Child of the deceased
As the above, any claim by children can only be on the basis of hardship.
This includes anyone treated as your own child and supported by you, including illegitimate children or those conceived before, but not born till after, your death. The claim can only cover essential maintenance.
This covers a wide range of potential claimants. Maintenance only is payable. There needs to be evidence of full or partial maintenance prior to death. Such support does not have to be financial, however.
There is another situation where the court can change a will after your death. This relates directly to conditions that you may have imposed on a beneficiary in order to receive a gift which are unreasonable. If the court decides that this is the case, that particular condition becomes void and does not have to be fulfilled.
If the condition involved something being done before the beneficiary receives the gift then the beneficiary does not receive the gift. If the condition involved something being done after the beneficiary received the gift then the beneficiary can have the gift without condition. If the beneficiary does not receive the gift, as in the above, then either the will can make alternative provision or the gift can form part of the residue of the estate.
Unreasonable conditions can be many, one such being any condition that provides reason or incentive to break up a marriage, intention to remain celibate or not to remarry or one that separates children. There are others which impinge on religion, general behaviour and crime. An unreasonable condition very much depends on the perception of the beneficiary and the perception of the courts.
A beneficiary can lose the right to bequest, apart from any failure to meet conditions attached to a bequest. Again, a court will decide in what circumstance this is appropriate. Crime could be a reason, such as murder, or evidence of coercion or harassment of another person in pursuit of selfish gain.