Is the Will valid?
A Will or Codicil can be challenged on a number of grounds:
If a Will is to be valid it must satisfy some specific requirements. In particular, it must be signed by the testator (the person making the Will) in the presence of two witnesses (who are not beneficiaries) who must be present at the same time. Each witness must then sign the Will.
If any of the specific requirements are not met the Will may be found to be invalid.
If it can be shown that the testator did not have mental capacity when signing the Will it will be invalid. A previous Will may take effect instead unless it can be shown that the testator revoked it irrespective of whether the new Will is valid; or the testator has married since the previous Will was made. Medical and witness evidence will be needed to prove or disprove the testator’s capacity. If there is no earlier valid Will, the estate will be administered in accordance with the intestacy rules (standard rules on how an estate must be shared out if there is no Will).
Lack of Knowledge and Approval
It may be that a testator does not understand the extent of his or her estate or the effect of making a Will and in this situation the Will may be challenged on the ground of lack of knowledge and approval. This can be difficult to prove.
Undue influence or fraudulent calumny
Sometimes a testator makes changes to a Will, or makes a new Will, favouring a person who is in a position of trust with the testator. If it can be shown that that person coerced or pressurised the testator into making those changes or making certain provisions in a new Will, the Will can be challenged on the ground of undue influence.
On other occasions, a person close to the testator gives the testator false information. Believing it to be true, the testator amends the Will in light of those representations, usually to the detriment of others. In those circumstances the Will can be challenged on the grounds of fraudulent calumny.
The nature of the evidence required means these claims can be difficult to prove. Witness evidence is usually very important in these cases.
Inheritance Act claims
If someone dies and, either under a Will or under the intestacy rules, an eligible person has not been left sufficient provision from the deceased’s estate, that person can bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. These claims are often referred to as 1975 Act or Inheritance Act claims.
The 1975 Act specifies who is eligible to claim. The categories include spouses, co-habitants (if they have lived together for more than 2 years), children or persons treated as children of the deceased, or anyone financially dependant on the deceased at the time of their death.
The court will take into account a lot of different factors when considering first, whether a party is an eligible claimant, and secondly what, if anything, they should be awarded. The courts will take particular note of the size of the estate and the financial circumstances of all of those involved.
Promissory or Proprietary Estoppel
Where a person has made a promise during their lifetime, to benefit another on their death, and that promise has been broken, it is possible to bring a claim for failure to fulfil that promise. The claim can arise from a promise for a sum of money or non specific benefit (promissory estoppel) or for property or land (proprietary estoppel).
The key requirements for this kind of claim are:
- a promise was made;
- the promise was relied upon by the person to whom it was made (the promisee); and
- that reliance has resulted in detriment to the promisee.
For example, if a person gives up their job to care for a testator, relying on the testator’s promise to provide for them when the testator dies, but the Will does not provide the promised benefit, the carer can claim against the estate to place them in the position they would have been in had the promise been fulfilled.
The court will often look at the proportionality of the promise and may only reimburse the claimant to return them to the position they would have been in had the promise not been made, i.e. if the carer had retained their job.
If an Executor or Trustee is not acting in accordance with their duties, and beneficiaries are unhappy with the running of a trust or the administration of an estate, the beneficiaries can ask the court to intervene.
The court can order removal of executors or trustees, or give directions as to how the trust or administration should proceed.
In cases where a trust or estate has been mishandled and this has led to a loss, trustees and executors can be pursued for losses suffered by the beneficiaries.