Can I challenge a will that fails to make reasonable provision for me?

It tends to be only in Hollywood movies that a will is read aloud, usually for dramatic effect where the contents of the will are unexpected and lead to the sort of tensions which create a good plot. For example, in the 2019 film ‘Knives Out’ the patriarch cuts his entire family out of his will in favour of his caregiver.

While such dramatic events are unusual in real life, it is becoming increasingly common for disputes over wills to arise, particularly where someone who expected to inherit has been excluded or where the provision made for them is less than they had hoped to receive.

‘If there were family tensions, then the contents of the will may not come as a total surprise’, says Jim McGarrity, wills and probate litigation lawyer. ‘But it can still come as a blow to those who are affected, and this may lead to questions about whether there is any way in which the will can be challenged and its provisions varied.’

In some cases, there may be suspicions of fraud or undue influence. In others there may be a feeling that the terms of a will are simply unfair given the relationship that you and the deceased person enjoyed. It is this latter category of case that Jim McGarrity focuses on in this article.

Where you are the spouse, civil partner or child of the person who has died, or someone who cohabited with them or received financial support, then it may be possible for you to challenge their will under the Inheritance (Provision for Family and Dependants) Act 1975.

For this to be possible, you must be able to show that the terms of the will fail to make reasonable financial provision for you and that, in the circumstances that exist, it is right for your loved one’s will to be interfered with in order to rectify this.

Your solicitor will be able to advise you on whether a claim may be possible and, where it is, provide support to enable you to secure the inheritance that you deserve. Ideally this will be through negotiation with the executors but, failing that, via the instigation of legal proceedings in order to obtain an appropriate court order.

Eligibility to make an Inheritance Act claim

To bring a claim under the Inheritance Act, you must be:

the spouse or civil partner of the person who has died, or a former spouse or civil partner who has not yet remarried or entered a new civil partnership;
someone who lived in the same household as the person who has died for at least two years prior to their death and as though you were husband, wife or civil partner;
the child of the person who has died, or someone they treated as their child; or
someone who was in receipt of significant financial support from the person who has died, whether through the provision of money or something of money’s worth.

Justification for varying the terms of a will

When considering if the terms of a will ought to be overridden, a range of factors will be considered, including:

the financial resources you have at your disposal or are likely to have in the foreseeable future, together with your current and expected future financial needs;
the financial resources and needs of other prospective beneficiaries;
whether you or anyone else with (or claiming to have) inheritance rights suffers from a physical or mental disability;
whether the deceased person had any sort of obligation or responsibility towards you or any of the other beneficiaries;
the size and nature of the estate, including the amount of money, property and possessions available for distribution once debts have been settled; and
any other matters that the court considers relevant, including the nature of your relationship and the way you and anyone else involved in the case have acted.

Where you are making a claim as a spouse or civil partner, or as a former spouse or civil partner, regard will also be had to your age, the duration of your marriage or union, the contribution you have made to your family’s welfare and, if appropriate, what you might have received had you and your loved one divorced or had your civil partnership been dissolved.

Some of these considerations will also apply where you cohabited.

What does ‘reasonable’ financial provision mean?

What amounts to ‘reasonable’ financial provision will depend on your relationship. For example, children and cohabitants are entitled to claim such provision as is necessary to meet their needs, whereas spouses and civil partners are entitled to claim whatever provision is deemed appropriate given the circumstances.

A key part of your lawyer’s role will be to assess the provision that ought reasonably to be made for you and to justify why it is appropriate for you to receive this. Regard will need to be had to previously decided cases which have parallels with your own and to the best way to achieve fairness between you and any other beneficiaries, who will almost certainly see their own inheritance fall as a result of the claim you are seeking to make.

Is there a time limit?

To be eligible to make a claim, you will usually need to ensure that your case is started within six months of permission being given for the deceased person’s affairs to be wound up and for their money, property and possessions to be distributed, so within six months’ of probate being granted.

What happens if my claim is successful?

There are a range of possible orders that the court might make, or which your lawyer may be able to negotiate where there is agreement that your claim ought to be allowed. These include an order that you receive:

a lump sum payment;
regular payments of a set amount for an agreed period of time;
rights of ownership over a specific property, or a share in the proceeds of sale where it is agreed or ordered that a property should be sold; or
rights to occupy a specific property, either indefinitely or until the happening of a certain event.

Contact our experts

At Geoffrey Leaver Solicitors, we have a team of experienced lawyers to support you in advancing a claim for reasonable financial provision and who can help you to resolve any dispute that may arise over your entitlement as quickly and smoothly as possible.

We can assist whether you are the person who wishes to pursue a claim, an existing beneficiary who would like to see a claim dismissed or the executor or administrator of the deceased’s estate who is unsure of where they stand.

For further details, please contact Jim McGarrity on 01908 689331 or via email at jmcgarrity@geoffreyleaver.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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Jim McGarrity | Partner

Private Client Services