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Challenging A Will

Challenging a will is similar to contesting a will, in that it is a legal process through which someone can bring up any issues they have with a will that has been made. However, rather than finding fault with the ultimate legality of the will (contesting), challenging a will means that you have found a problem with the provisions within it. So although the will is perfectly legal (ie it was witnessed, was not made under duress, the deceased was ‘of sound body and mind’, and they understood what they were doing), what it says is, in the eyes of the challenger, not quite right. Or even very, very wrong.

There are two reasons for challenging a will after it has been read out. The first is when the deceased has made assurances that you would be provided for in their will, but they failed to make those provisions. In order to challenge this occurrence, it will be necessary to use a legal challenge called the Proprietary Estoppel. To be able to take the Proprietary Estoppel further, you would need to show that the testator promised that you would benefit by their will. This does not need to be in writing (although that is the easiest and most reliable way), and can be shown through proving that, because of what you believed you would inherit, you acted in a way that was to your detriment. For example, you might not have taken a better paid job you were offered because the testator needed your services, or perhaps you worked unpaid overtime for the deceased. If the court finds that the testator’s actions were ‘unconscionable’, then they can enforce the will as you thought it was going to be.

The second reason for challenging a will is when you feel that you haven’t been left enough money, property, or possessions, even though the deceased knew that your financial situation was untenable. In this case, you would need to use the Inheritance (Provision for Family and Dependants) Act 1975. Here you would need to prove (within six months of probate) that you had a better claim for reasonable financial provision than the original will had dictated. Although often difficult – if not impossible – to ascertain exactly what a ‘reasonable financial provision’ would be, the length of the relationship with the deceased is taken into account, along with the size of the estate, and any additions or amendments to the will, such as a statement of intention. This is not a legally binding document, but can often help in such cases, as it lays out the deceased’s reasons for portioning their estate in the way that they have.

It is also possible to challenge any mistakes found within a will, if these mistakes change the meaning of what is written, and therefore don’t reflect the testator’s final wishes. Here you would claim using the Administration of Justice Act 1982, but there must be an obvious typographical error (eg a name spelled incorrectly, or a figure with a wrongly placed decimal point), or it must be shown that whoever drew up the will did not understand the deceased’s instructions.

If any of the above affects you, then don’t hesitate to contact us. We can help you, no matter which option you feel is the right one.

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