Defending an estate from a Will challenge
It can come as an enormous shock when a loved one dies, to find that their Will is being challenged. The initial reaction of most people is that it can’t be possible; that the whole point of making a Will is to avoid any arguments after death! But, in fact, disputes over Wills are on the rise. The growth in cohabiting may in part explain this. There’s a common misconception that cohabiting couples have rights in relation to one another’s property. According to a survey in 2008, 51% of respondents thought that unmarried couples who live together for some time probably or definitely had a “common law marriage” which gave them the same legal rights as married couples. This is not true.
When can a will be challenged?
a) A Will can be set aside for a number of reasons, including because it has not been signed or witnessed properly, or for lack of mental capacity (e.g. as a result of dementia). As a matter of law, it is very difficult to overturn a Will because suspicions alone are not enough. The challenger has to prove that the Will is unsafe and very often that is a difficult task, particularly if the Will was made some time before death.
b) An alternative to arguing about the validity of a Will is a claim under the Inheritance Act 1975. This Act allows many individuals who were close to the deceased, or financially dependent on them, to bring a claim against the estate if they feel that the Will fails to make “reasonable financial provision” for them. There is a six month deadline for bringing a claim. The claim will not succeed just because a close family member has been left out of a Will. If a daughter has been estranged from her mother for many years, for example, it may well be impossible for her to bring a claim.
What should Executors do?
Executors of a Will are under a duty to take a neutral position in relation to any litigation. They mustn’t take sides. If the case is likely to go to Court, they ought to be represented by a solicitor. Sometimes an executor is also a beneficiary of the Will and, if so, with their beneficiary “hat” on, they are entitled to defend the claim. It is really important that claims should be challenged early on if they are unreasonable. Sometimes a “try on” claimant thinks that the estate will give in and make some sort of payment to them just to save legal costs – but a claim should only be settled if it is valid, as otherwise the deceased’s last wishes are not being respected.
These cases can be very expensive and expert legal advice is crucial early on to figure out if the challenge is genuine or not; if it is then the claim should be settled as soon as possible, but if it is not then decisive action is necessary to preserve the estate.