COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

My relative recently died and we are devastated by the will they left. Their will was from many years ago and we are certain it would have changed significantly if they had the opportunity to revisit it. Is there anything we can do to challenge it?

It is not possible for a disappointed beneficiary to challenge a will merely on the basis that it is outdated, or they believe that their relative intended to update their will but never got round to it. The executors have a duty to distribute the estate in accordance with the terms of the will, and cannot deviate from the deceased’s wishes, unless the beneficiaries agree to this.

There are, however, specific grounds which allow a person to challenge a will. These generally fall into the following categories:

  1. A lack of testamentary capacity;
  2. A lack of knowledge and approval;
  3. Undue influence;
  4. Fraud or forgery; and
  5. A lack of valid execution

If the challenge to the will is successful, the will in question is deemed to be invalid. This means that the deceased’s estate would then be distributed in accordance with any previous will. If the deceased did not make an earlier will then the estate would be divided in accordance with the statutory intestacy rules. A beneficiary should, therefore, carefully consider whether it is in their best interests to challenge a will because they may in fact be worse off under a previous will or under the intestacy rules.

Alternatively, if the will itself is valid, certain claimants may be able to bring a claim against an estate if they do not benefit under the will, or they benefit but not to a sufficient degree. Under the Inheritance (Provisions for Family and dependents) Act 1975 only certain individuals have standing to bring a claim and include, for example, spouses, children and those who cohabited with the deceased for at least 2 years prior to their death. Those family members who are eligible to bring a claim, will have to prove that they have not been left reasonable financial provision under the will. Various factors would be considered such as the size of the estate, the financial needs and resources of the beneficiaries and any obligations or responsibilities the deceased had towards the claimant.

Sintons have a specialist contentious probate team who have a wealth of experience in advising individuals, professional executors and charities on both making and defending claims against an estate.

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