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What are the reasons for contesting a will?

Unlike the legal systems of some other countries, English Law does not force a person at the point of making a will to make automatic provision for spouses and children; the person making the will chooses who to include or exclude. If no will is made, the law sets out which of their relatives will inherit their estate (the Intestacy Rules).

The provisions of a will or the intestacy rules might result in a dispute between the beneficiaries due to the way the deceased person’s family and their financial circumstances have changed over time.

There are many reasons why a will which seemed perfectly sensible at the time (or a person’s reliance on the Intestacy Rules) might be affected by evolving factors which create problems for beneficiaries.

An adult child may have given up their career to care for an ill parent, putting them at a disadvantage on the labour market. A spouse may receive the right to live in a property under a will which is in an isolated area without essential transport links or which might not be suitable for their future physical needs.

A child provided with monthly maintenance under an order from their parents’ divorce may need financial assistance with education costs which are not met by their deceased parent’s estate.

For reasons such as those mentioned above, the court can be asked to consider whether the will or the intestacy rules result in reasonable financial provision for certain categories of person and make an order to vary the way the estate is distributed.

Children of the family or those treated as children of the family can make a claim. This means that a stepchild or a child living with the deceased but not related to them, such as a cohabitee’s child fall within the class of person who can bring a claim against the estate. Adult children are included as well as minor children.

A person being maintained by the deceased can bring a claim and the type of maintenance can take many forms, such as a regular income, a contribution towards rent or mortgage costs, payments towards education or providing accommodation.

The court will look at the extent of the maintenance being provided and decide whether it should continue in some form, perhaps as an ongoing payment or as a lump sum.

Cohabitees can bring a claim if they lived with the deceased for more than 2 years, but they need to show they have lived with the deceased as if they were a married couple for that period and are more than simply housemates of the opposite sex.

The Court will also consider whether a spouse or civil partner has been reasonably provided for and this can include divorced couples in some circumstances as well as those couples who remained married to each at the time of death.

Given the wide range of possible claimants against an estate, there is often animosity between the parties as a result of their competing claims. An application to Court does not necessarily mean that the will should be re-written.

When dealing with the litigation, the court will carry out a balancing exercise on a case-by-case basis, considering many factors such as whether the deceased was in fact supporting the person bringing the claim, whether future maintenance might be required, whether there was any obligation for the support to continue and any other relevant circumstances.

Stephanie Kerr, Disputes & Litigation Solicitor