Where there’s a will, there’s a way!

28th May 2021

Following the death of a loved one or family member, there are often questions as to the deceased’s last will, its validity, or indeed whether it represents their true intentions.

Can someone leave their money to whoever they want?

Yes – in England and Wales there is no obligation on anyone to provide for family members in their will.  A testator (the person making the will) is also free to change their will as many times as they like.

Can I challenge the validity of a will?

Again, yes. There are various grounds on which the validity of a will can be challenged, including:

  • The person lacked capacity at the time of making their will
  • The will was not executed properly, meaning the key requirements were not met (for example, the will was not witnessed, it was not signed or it was witnessed by someone who will benefit from the will)
  • The person was influenced by someone else to make their will and may have made the will under duress.

If a will is successfully challenged and overturned, then a previous will (if there is one) becomes valid.  As such, one of the first issues to consider is whether you were provided for in the previous will.

What happens if I do not benefit under the will?

Certain eligible claimants can bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Can I bring a claim if the deceased promised to leave me their property but didn’t include that in their will? 

If you were promised the family farm and found, following the death of your father, for example, that his will has not reflected this promise, then you may have a claim against the estate to show that the farm belongs to you.

Amongst other grounds to challenge a will, you may have a basis to claim against the estate in these circumstances, for what is known as the law of proprietary estoppel.

To prove a case for proprietary estoppel, you have to show three key elements;

  • A clear promise
  • That you relied on this promise to your detriment
  • That it would be unjust to allow the deceased to go back on the promise.

Does it matter if the deceased and I were not married?

It may be that your partner died with a will but you were not provided for or not provided for sufficiently. If your partner did not have a will, as you are not married then you may not be provided for at all under the intestacy rules.

In certain circumstances, the law allows you to bring a claim against the estate of a partner as a cohabitee.

Is there a time limit for bringing a claim?

If you are concerned that a relative has left a will which might not be valid, there is no time limit for when you must make the claim, although it is worth seeking advice on your position as soon as you can.

If you are bringing a claim for reasonable financial provision, you have six months from the date of the Grant of Probate to do so.

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