Last year’s Supreme Court decision in Ilott v Mitson brought into focus the ability of a disappointed beneficiary to challenge a will.
In our recent experience, this has resulted in a significant increase in cases brought by a disappointed beneficiary against a Deceased estate. In brief, Mrs Ilott’s late mother had left her whole estate worth £486,000 to three charities to which she had no connection. Mrs Ilott brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) for “reasonable financial provision” to be made for her out of her late mother’s estate. The Act allows certain classes of disappointed beneficiaries (namely married or civil partners, cohabiting partners, and/or children of the deceased) to bring a claim where the will itself has not made adequate provision for them. The Court assesses what reasonable financial provision should have been made by reference to a variety of factors including the needs of the applicant, the needs of other beneficiaries, the size of the estate, any obligation or responsibility of the deceased towards the applicant, disability of the applicant or beneficiary and any other subjective factor the Court deems relevant. There is a 6 month time period from the date that the grant of probate is issued to bring a claim and so it is vital that you move quickly if considering making such a claim. Ultimately, the Supreme Court in Ilott v Mitson reinstated the Court’s decision at first instance and awarded her a lump sum of £50,000.
There are also other ways in which an entitlement under a will can be challenged.
The most obvious is to challenge the validity of the will itself. In simple terms, for a will to be valid, it must be in writing, signed by the person making it, and witnessed by two people. The person making the will must have had mental capacity in order to understand the effect it will have and they must have made the will voluntarily and without undue pressure from anyone else. If any of these elements are missing, then there is a chance that the will can be set aside. It is always important to remember the effect of having a will set aside – there may be an old will that will become valid as a result – or there may be no will in which case the rules of intestacy apply.
It is always worth noting that a beneficiary is able to vary what they receive pursuant to a will as long as this course of action is carried out within 2 years or less from the date of death (as tax issues arise). This situation may arise where a generous beneficiary agrees to reduce what they are entitled to receive in order to give a disappointed beneficiary a more equal or larger share of the estate.
Don’t be alarmed if these options sound costly and will all involve a scary trip to Court. Reassuringly, these types of disputes more often than not resolve at the early stages without the need for Court proceedings to even be issued. As there are a variety of options available, we encourage you to seek legal advice if you feel that you have unfairly missed out so that your interests are properly protected. In this regard, Wolferstans’ contentious probate team have enjoyed significant recent success acting on behalf of disappointed beneficiaries in securing substantial settlements from Deceased’s estates as well as successfully resolving claims for good value when acting for beneficiaries in defending probate claims.