Do I have grounds to challenge a Will?
The following are examples of when you may have grounds to challenge the terms of a Will:
- You have not been provided for in the Will in the way you expected or need, and as such might be able to make a claim under the Inheritance Act
- The deceased lacked mental capacity when he / she / they made their Will
- The Will was not properly executed, such as not properly signed or witnessed
- The deceased made his / her / their Will under the undue influence of another person
- The Will has been forged or fraudulently created
- The deceased promised you an interest in land or other provision on their death, you acted to your financial detriment on the basis of the promise, which the deceased knew, but then did not include this legacy in his / her / their Will (promissory/proprietary estoppel)
- The deceased made a Will leaving a testamentary gift to his / her / their child, but then advanced all or part of this gift to them in their lifetime without amending his / her / their Will accordingly
How do I challenge a Will?
This depends on the reasons for your challenge as well as any evidence you may have in support of your claim.
You may actually have more than one potential claim(s) which, when put together, could help improve your chances at a satisfactory resolution.
The sooner you contact your solicitor to explore your options, the better equipped you will be to make your claim, and the less likely it is that you will miss any important deadlines.
Challenging a Will – frequently asked questions
If you intend to challenge the validity of a Will, whilst there are no time limits if the estate has been distributed by the time you claim, there may be no assets available to receive if you are successful. It is also much more difficult to obtain the evidence a court will need as time progresses, as paperwork is not stored indefinitely.
However, other types of claims, such as claims under the Inheritance Act, have a time limit to commence within 6 months from the date the Grant was issued (subject to certain exceptions).
Time limits for certain types of claims are governed by the Limitation Act 1980 s22, which is not entirely clear but states:
‘(a)no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and
(b)no action to recover arrears of interest in respect of any legacy or damage in respect of such arrears shall be brought after the expiration of six years from the date on which the interest became due.’
Contact us as soon as you can so that you can find out as soon as possible whether you have a claim.
‘Estoppel’ is a legal principle that person A should not go back on a promise they have made to person B, when Person B has relied on that promise and acted to their detriment as a result.
Proprietary estoppel can arise in the context of a Will where the deceased promised they would leave an interest in land to Person B in their Will but then the deceased either did not include the gift in their Will, or did not make a Will and the rules of intestacy do not provide for that gift.
Promissory Estoppel is similar but where it is not an interest in land, but perhaps a share of the estate or another asset.
The requirements for such a claim are:
- An assurance by the deceased, that is unambiguous and sufficiently clear, that the interest in land would be given to person B by person A
- Person B relied on the assurance given by the deceased
- Person B, as a result of the reliance on that assurance, acted to their detriment. For example, they might have agreed to work for the deceased at lower pay or ceased other employment in order to care for the deceased.
- Person A was aware person B acted to their detriment upon the reliance on the promise
If you think this may apply to you, it is important to act quickly and obtain professional legal advice. If you do not pursue a potential promissory/proprietary estoppel claim at the point that it arises, you may lose your opportunity. Over time, it may be harder to gather compelling evidence, it may be harder to prove the detriment suffered, and the estate may have been distributed making the assets in question harder to ascertain, locate and retrieve.
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