Robert Worthing, Partner and Head of the Family team at Rawlison Butler LLP Solicitors, highlights the circumstances in which a will can be challenged and the factors that the courts will consider in all cases.
As a general rule, you can dispose of your property as you wish in your will.
However, your Will can be challenged in limited circumstances. One significant example is a “family provision” claim brought by a family member or dependant who feels that you have not reasonably provided for them in your Will. Similarly, if you have not made a Will, the family member or dependant can challenge the effect of the intestacy rules on your estate.
So if, at the time of making your Will, you decide to give one of your children a smaller share of the estate than another, then it is advisable to explain this to your solicitor and for the reasoning behind this decision to be set out in full in a Letter of Wishes which is then enclosed with the Will.
Irrespective of the Letter of Wishes, an application can still be made to the court for ‘reasonable provision’ by the family member or dependant and the court can make a range of orders varying the distribution of the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
Who can apply?
- the husband, wife or civil partner of the deceased;
- a former wife, former husband or former civil partner of the deceased who has not remarried;
- a child of the deceased even if they are now adults. This includes adopted children;
- any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership. This includes step-children;
- a person (not being included above) who immediately before the death of the deceased was being maintained wholly or in part by the deceased; and
- A cohabitee who was living with the deceased in the same household for an unbroken period of two years ending immediately prior to the deceased’s death and was living with the deceased as husband and wife or as the civil partner of the deceased. There is an exception that if there was a separation due to external circumstance such as admission to hospital it does not cause a break in the cohabitation.
When do we have to make the application by?
The time limit to commence an application is 6 months from the date of the Grant of Probate therefore it is advisable to seek advice as soon as possible. Permission to apply out of time may be granted by the court however it will only do so in very limited circumstances and this should not be relied upon as an option.
Factors the court will consider in all cases
- the financial resources and financial needs which the applicant and any other beneficiary of the estate has or is likely to have in the foreseeable future;
- any obligations and responsibilities of the deceased towards the applicant or any beneficiary in the estate;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of the applicant or any beneficiary of the estate;
- any other matter which the court considers relevant including conduct.
In each of the categories of applicants, further factors are taken into account by the court. For example, in the case of a claim by a spouse or former spouse, the duration of the marriage and the contribution of the surviving spouse to the welfare of the family are considered.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.