13 June 2018

If you sensibly go to the time and trouble of making a Will, do you need to worry that someone may challenge it after you die?

English Law values the freedom of individuals to dispose of their assets in whatever manner they wish. There is no automatic or forced heirship. The law does though allow the Court to modify a Will if it does do not make reasonable financial provision for a limited class of persons. Those rules are set out in the Inheritance (Provision for Family and Dependants) Act 1975.

Only certain people may make an application: spouses and partners, former spouses and partners, children, and others who were actually maintained by the deceased at the time of death.

Spouses and civil partners can claim a share of the capital in the Estate. All other claimants can only try for what is needed for their maintenance.

Did the claimant receive reasonable provision under the Will? It is not easy to answer with precision. What one judge may regard as reasonable another judge may think is too little. The Court must make a value judgement. Careful analysis of likely outcomes and risks is required.

The question is not whether the deceased behaved reasonably or unreasonably when the Will was drafted.

The real question is whether the effect of the Will makes provision for the claimant which is reasonable in the circumstances which exist when the person has died. That may be a long time after the Will was written. During that time, a lot may have happened. The deceased and claimant may have become a lot richer or poorer. The claimant's relationship with the deceased may have changed. The claimant's health may have altered. The claimant may have had children, been made redundant or won the lottery.

It is impossible, therefore, for the person making the Will to be sure that it is a cast-iron Will and cannot be challenged later. The current state of the law leaves it quite possible for successful claims to be made, even where the person leaving a Will was quite clear as to his or her wishes, and that is likely to continue.

Anyone making a Will should take the very best advice they can and make sure that all possible steps are taken to limit any potential challenge. Missing out this work at the Will writing stage may mean that problems are stored up, only to appear later when the person has died and it is too late to prevent a damaging and expensive dispute from arising.

Anyone considering making a claim or any estate facing one, will inevitably need to take advice from an experienced litigator, to assist with deciding how to deal with a claim and the tactics to employ to achieve the best outcome.

If you have any questions about this article or would like any more information please contact Peter Livingstone on 01935 846235 or

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