Can I Challenge A Will?

Year Published: 2018

Administering an estate is not always straightforward and concerns can be raised by both the beneficiaries and the executors of a Will. Below are a few of the frequently asked questions and their answers to help you through the estate administration process and understand when you can challenge a Will.

  1. I have been left out of a Will, can I make a claim?

There is legislation to enable people that have not received a financial provision, or have received an inadequate provision, in a Will to seek such provision. Whether you can make a claim will depend on your relationship to the deceased as you need to fall into one of the relevant categories, which are:

  • A spouse or former spouse;
  • Someone living with the deceased as a husband or wife for at least two years;
  • A child or someone treated as a child of the deceased;
  • Somebody otherwise maintained by the deceased.

Once it is established that you have an entitlement, it can then be determined what, if any, provision should be made. This will depend on a number of factors including the size of the estate, whether the deceased was maintaining you, your own financial position and any hardship caused to other beneficiaries.

  1. I don’t think my relative had mental capacity to make a Will, can I challenge the Will?

There are several grounds for challenging a Will relating to validity and whether the deceased had mental capacity at the time of making a Will is one of them. If you are successful in your challenge, the Will would be invalid and an earlier Will would take effect. If there is no earlier Will, the intestacy rules would apply.

The test for mental capacity confirms that the person making the Will must be able to understand the extent of their estate and that they are making a Will. They must also be able to appreciate the people they ought to benefit under the Will and not be affected by any mental disorder that would cloud their judgement.

Where a Will appears rational and particularly where it has been professionally drafted by a Solicitor, strong evidence will be required by the court to find that a testator lacked capacity. If the issue of capacity is raised, it will be up to the personal representatives to prove that the testator did have capacity.

  1. I am an executor of a Will but my co-executor is refusing to cooperate, what can I do?

If your co-executor does not wish to act in the administration of the estate it is possible for them to renounce their appointment, which means that it will be left for you to deal with. Alternatively they can have their power reserved, which means that they do not act with you initially but can step in and make a probate application themselves at a later date.

Depending on where you are in the process there may be a cost to remove an executor as, if they already have Grant of Probate then court proceedings could be needed to take action against them.

If you would like any further information about how you can challenge a Will or if you are encountering difficulties administering an estate, please contact our Estate Administration & Probate team on 0161 475 7676.

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