Posted On / 27.03.2018

Can anyone challenge your Will after you die?

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

If you have strong feelings about who should receive your Estate and who should not, is there a risk that when you are gone, one of the people who you have decided should not inherit can try to overturn your decision?  

In many other European countries, the law ties the hands of people who are making a Will. The law may say that no matter what you think, you have to give half of your Estate to your children.  English Law, however, values the freedom of individuals to dispose of their assets in whatever manner they wish.  The law here knows of no rule of automatic succession or of forced heirship.  

There are default rules in the event that someone dies intestate, which is where  the deceased did not leave a Will.  Beware the assumption that a surviving spouse will receive everything.  This is only the case if the deceased did not have any children.  If they did have children, then personal possessions, joint property including land and investments and the first £250,000 will go to the surviving spouse, then everything above this amount will be divided half to the surviving spouse and half equally between the children. The same applies to formal civil partners, but not to people simply cohabiting.  

English Law does, however, have a qualification to people's freedom to leave their Estate to whoever they want, and since 1938 it has allowed the Court in some circumstances to modify either the Will or the intestacy rules if the Court is satisfied that they do not make reasonable financial provision for a limited class of persons. Those rules are now set out in the Inheritance (Provision for Family and Dependants) Act 1975.  

Only certain people may make such an application, namely spouses and partners, former spouses and partners, children, and finally those who were actually being maintained by the deceased at the time of death.  

Spouses and civil partners who were in that relationship on the date of death 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 or under the intestacy rules? Unfortunately, this test is not an easy one to answer with precision. What one judge may regard as reasonable may be something which another judge regards as unreasonable, and there are other factors which make things still more uncertain.  

The question is not whether the deceased behaved reasonably or otherwise when the Will was drafted. The deceased may have been unfair, capricious or unjustified in his criticism of the person affected by his decision, but that is not the crucial test (though it will be taken into account).  

The real test is whether or not the effect of the Will or the intestacy provisions was such as to make reasonable provision for the claimant.  

That effect can be considered only after the person has died. That may be some considerable time after the Will was written.  During that time, a lot may have happened.  The deceased may have become a lot richer or poorer and the same may apply to the claimant.  The claimant's relationship with the deceased may have got better or worse.  The claimant's health may have deteriorated or improved.  The claimant may have had children, been made redundant or won the pools.  

It is impossible, therefore, for the person making the Will and/or their lawyer to be sure that it is a cast-iron Will and cannot be challenged.  

It was once thought that perhaps putting a letter of wishes with the Will explaining the decisions in it would provide a good deal of protection. As mentioned above, whether the person writing the Will acted at that time reasonably or not is only one of the factors which the Court will consider, and making sure that the paper record shows that the person creating the Will was falling over themselves to be fair is not necessarily going to win the day.  

What can be done, therefore, to protect a Will, particularly if it contains decisions which some potential beneficiaries may regard as harsh or unjust?  

Unfortunately, there is no silver bullet. The best that anyone can do is to shore up their position but in the knowledge that in the end it may not work.   

These are some things which may help.  

Be aware of where the danger areas are. If you decide to give a limited gift to a friend, a cousin or the RSPB, there is very unlikely to be an argument about that.  Giving the whole estate away to one of them may cause larger problems.  

Be aware of the classes of claimants who can challenge your Will. Not everyone can.  Focus your caution on your spouse or partner, former spouse or partner, your children, and on anyone you are actually supporting financially.  In some circumstances it may, unfortunately, be necessary for you to stop doing that.  

If you are going to disinherit someone who has a strong expectation, consider making sure that they are aware of that so that they get used to the idea. Nobody likes an unpleasant shock.  If a child, for example, has known for years that they are not going to inherit anything significant, they may have resigned themselves to that fact a long time before you die.  

Consider buying off any potential claimant. If you make a payment to them while you are alive, you may be able to get them to agree in writing not to challenge your Will.  That agreement may not be binding but it may well go a long way towards defeating any claim.  The Court is entitled, when considering a claim, to look at absolutely anything it wants to when coming to its decision, and that will include a written agreement not to bring a claim even if the Court thinks that it is not strictly speaking a binding contract.  

Alternatively, consider giving a potential claimant something in your Will to stave off the argument that they have not been left a reasonable legacy. Furthermore, if you were to follow this course of action, if they wish to make a claim, they will then be claiming only the difference between what they think they ought to receive and what you have given them, and that may give them less motivation to bring a claim.  

You may wish to give detailed instructions to your solicitor about the reasons for your decision. You may also wish to place a letter with your Will explaining your thoughts.  Those are not going to be binding on the Court, but again the Court is entitled to take them into account.  If they appear to be sensible and justified, your written concerns about the potential claimant may be something to which the Court attaches a good deal of importance and may be good evidence that you had the requisite ‘testamentary capacity’ at the time.  For a belt and braces approach you may also wish to ask your doctor to provide a report on your testamentary capacity to be stored with your Will and produced if there is ever a claim.  

Conclusion  

Unfortunately, the 1975 Act gives the Court something of a headache. The Court must make a value judgement and exercise a discretion.  As parties consider whether to litigate and as they head towards a trial, they know that there is no one right answer.  It is impossible to know how the Judge will be feeling on the day and which of the parties to the case will attract the Judge's sympathy.  The current state of the law will leave it quite possible for successful claims to be made, even where the person leaving a Will was quite clear as to his wishes.    

The 1975 Act leaves it impossible for someone writing a Will to have cast-iron guarantee that the Will cannot be challenged after they have gone.  

The Law Commission may reconsider the fundamental principles underlying the 1975 Act, but until they do, this will be an area where there is often uncertainty as to whether a person’s Will will in the end remain safe and unchallenged.

If you have any questions please contact our private client team on 01935 846000 or click here