For wills that are invalid or if you feel that you or someone you know has not been properly provided for, there is a possibility of contesting or disputing that will. There are certain criteria that may make a will invalid in Court.
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If the testator (the person who made the will) was physically or mentally incapable of making the will at the time that it was made, the will is invalid.
Capacity encompasses two main factors:
Age (18+ for England & Wales, 16+ for Scotland)
Mental capacity (soundness of mind, judgement, memory and understanding
In the will, the testator must have had clear intentions to dispose of their assets upon their death. If the person making the will was of sound mind and the will was properly executed, then the intent is usually assumed to be present.
Forced, influence and fraud
In cases where it can be proved that the testator was unduly pressured or coerced into making the will, the Court has the right to discard all or part of the will. The same applies if the circumstances leading to the obtaining of the will are suspected to be fraudulent, or if the will was forged after the testator’s death.
Usually, the will has to be done in writing in order to be valid. The testator, or someone acting on behalf of the testator (e.g. executor) must sign the will. At the time of the signing, there must also be 2 witnesses present.
A revoked will is not valid in the Court of law. In the cases where the testator marries or registers a civil partnership, the will is normally revoked. The testator can also revoke the will by creating a new will or codicil. A statement or written declaration can be made to indicate the testator’s intention to revoke the will. The will would also be considered revoked if it was intentionally destroyed by the testator.
Inadequate provisions to a benefactor(s)
In theory, the testator reserves the right to dictate the amounts and the benefactors to their estate in the will. Nevertheless, under the Inheritance Act 1975 (Provision for Family and Dependants), there is a clause where the will has to make “reasonable financial provision” to certain individuals. The Court has the authority to overrule the will and insure that the right people are provided for.
Applying for provision under the Inheritance Act 1975
If the following people felt that they were inadequately provided for, they are eligible to apply under the Inheritance Act:
The deceased’s spouse or civil partner
The deceased’s former spouse or civil partner (provided that they haven’t entered a new marriage or civil partnership)
The deceased’s child
Any person, in the case of marriage, that was considered or treated as a child by the deceased and their family by extension
Any person who shared domicile with the deceased, immediately two years prior to the death
What factors will the Court consider when reviewing the application
Under the Inheritance Act 1975 (Provision for Family and Dependents), the Court will look at the following factors:
The applicant’s financial situation and needs in the foreseeable future
The financial situation and needs of any other potential applicant in the foreseeable future
The beneficiary’s financial situation and needs in the foreseeable future
Legally binding financial obligations and responsibilities that the deceased has towards the applicant or beneficiaries of the estate
Net worth of the deceased’s estate
Mental or physical disabilities that the applicant or beneficiary may have
Other considerations that the Court may find relevant for supporting the application e.g. the conduct and behaviour of the applicant
When judging the financial situation of the applicant, the Court takes into account their earning capacity, financial history, obligations and responsibilities.
For claims made by spouses and civil partners, the Court looks at the following factors:
Age of the applicant and the duration of marriage/civil partnership
Contributions done by the applicant towards the welfare of the deceased’s family and relatives. This includes caring for family members and home
Reasonable provisions that the applicant could have expected if, the marriage or civil partnership was ended not by death, but a divorce or dissolution of civil partnership
For claims made by the children of the deceased, the Court looks at the following factors:
How the applicant was or expected to be educated or trained
If the children were not related to the deceased by blood:
The extent and timescale for which the deceased claimed responsibility for the applicant’s maintenance.
In the case that the deceased intentionally assumed or ceased the responsibility for maintenance, was the deceased aware that the child(ren) were not related by blood?
Other parties responsible for the maintenance of the child.
When to apply?
Any applications under the Inheritance Act 1975 (Provision for Family and Dependants), will need to be made within 6 months of the Grant of Probate.