CLAIMS AGAINST ESTATES AND WILL DISPUTES
Some family members or dependants may be able to challenge the Will of a loved one if they can establish that the Will did not make reasonable financial provision for them. Alternatively beneficiaries named in a Will and others can challenge a Will in certain limited scenarios. If the deceased did not leave a Will then claims can be made under intestacy rules.
Claims against estates are rising. In order to minimise the risk of a claim being made it is important that specialist professional advice from Will solicitors is taken at the time of making a Will. When a loved one passes away it is equally important to get impartial early legal advice from Will solicitors on the terms of the Will if you have questions or concerns.
Who can make a claim against an estate for lack of financial provision?
The law says that certain persons can bring a claim for financial provision namely:
- The husband or wife or civil partner of the deceased;
- The former husband , wife or civil partner of the deceased – provided that they have not remarried and didn’t agree to a financial clean break at the time of their divorce;
- Anyone who was living in the same household as the deceased as the husband or wife of the deceased for at least 2 years prior to the deceased’s death;
- A child of the deceased – even if they are an adult;
- A child who was treated by the deceased as a child of the family during a marriage;
- Anyone who was being maintained by the deceased immediately prior to death.
When can a claim be made?
A claim can be made if the deceased’s Will didn’t make reasonable financial provision for the person claiming. What amounts to reasonable financial provision depends on the size of the estate and other factors.
What factors does the Court take into account when deciding on whether reasonable financial provision was made by the deceased?
The Court takes different factors into account depending on who the claimant is. It is important to get early specialist legal advice from Wills solicitors to look at the relevant factors, any competing claims and to look at the potential costs of Court proceedings.
What orders can a Court make if a claim is made for reasonable financial provision out of an estate?
If the Court agrees that a Will didn’t make reasonable financial provision the Court can make the following types of orders:
- Regular payments from the estate for a set period of time;
- The variation of a post marriage settlement;
- The setting up of a trust , for example to provide a home for a spouse or a cohabitant to live in during their life;
- A transfer of property from the estate of the deceased to the claimant;
- A lump sum payment.
Who can contest a will?
The law says that certain people can contest a Will namely:
- A beneficiary in the Will;
- Someone who is owed money by the deceased;
- Someone who was promised something by the deceased;
- Anyone who can bring a claim against the estate if it didn’t make reasonable financial provision for them.
When can a will be contested?
A will can be contested for a number of reasons including:
- The deceased was pressurised into signing the will or in other words there was undue influence;
- The deceased did not have mental capacity to make a will at the time that it was signed;
- The will wasn’t signed by the deceased or witnessed properly so the Will lacked the necessary legal formalities;
- The deceased didn’t know what they were signing when they signed the Will or didn’t understand it.
Time limits for contesting a will or applying for reasonable financial provision out of the estate
There is a 6 month time limit from the date of grant of probate to contest a Will. The time limit can sometimes be extended by the Court but as there is no guarantee that the Court will do so it is important to get early specialist legal advice from Wills and probate solicitors.
How are claims sorted out by Wills and probate solicitors?
Whether a Will is being challenged because it does not contain reasonable financial provision or the Will is being contested Mediation is encouraged to try and get a resolution without resorting to what can be expensive and protracted Court proceedings. During the Mediation process it is vital that all parties to the potential Court proceedings get legal advice from Wills and probate solicitors so that they know where they stand. If agreement can’t be reached in Mediation then an application can be made to Court.
Can claims and will challenges be avoided?
The risk of litigation can be reduced if a will is professionally drawn up by a specialist wills solicitor after exploration of any potential claimants and discussion about options. If it is believed that a person may try to say that the will doesn’t make reasonable financial provision then the person making the will can explain, in a separate letter, why they have made the provision contained in their will. These steps can’t guarantee that a claim won’t be brought but it does minimise the risks. Evolve wills and probate solicitors in Manchester and Cheshire can help prepare wills, sort out probate or discuss potential claims against estates.