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Can I Contest a Relative’s Will Successfully Can I Contest a Relative’s Will Successfully

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Jun 15

Can I Contest a Relative’s Will Successfully

Written by Jonathan Mortimer
Consultant Partner

DDI: 01423 726608
M: 07850 993952
E: jonathan.mortimer@raworths.co.uk

I frequently meet individuals following a death in the family who wish to contest a relative’s will.  They usually feel extremely aggrieved by the provision or lack of it which has been made in the will for them.

It is usually the situation in which sons and daughters have not been given an equal share of the estate.  For example, a son may say: ‘Why should I get less than my brother just because I have been successful?‘   A daughter may say: ‘Why should I get less than my sister just because I lived some distance away? – it did not mean that I loved my mother any less’  There may have been very good reasons for the unequal distribution by the maker of the will at the time but the family members concerned feel like the so-called ‘black sheep’ of the family.

I also meet people who are put in a very difficult financial position as a result of a death.  For example, the deceased has not made sufficient provision for them even though they were dependent upon the deceased before death.

What can be done for these people ?

It is certainly the case that the law provides for possible injustice and will set aside a will in the following circumstances:

  1. The will was drafted negligently and does not reflect the wishes or intentions of the deceased.
  2. There has been undue influence by a family member to force the deceased to make the will.
  3. The deceased lacked mental capacity to make or sign the will.
  4. A homemade will has been drafted incorrectly or improperly executed.
  5. There are circumstances in which the will does not make reasonable financial provision for the deceased’s dependants.

The latter example is the most common.  The Inheritance (Provision for Family and Dependants) Act 1975 allows a Court to adjust the distribution of an estate to ensure that provision is made for those who were dependent upon the deceased.  Many people forget to change a will to reflect a new relationship or a change of circumstances.  However, the law is there to help in those circumstances.

Otherwise, it is a case of attempting to rely upon the other grounds to challenge a will.  If the deceased had the benefit of legal advice at the time they made the will and it has been reviewed regularly by the deceased before death it is much more difficult to make a successful challenge.

This is how it should be.  Wills are a very private and important document.  They should generally be free from challenge so that the testator does have a final say as to what should become of his acquired wealth.  However, safeguards are in place to ensure fairness if something goes badly wrong.

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