What can I do if I think the will is unfair?

What can I do if I think the will is unfair?

Wills are legal documents that set out the wishes of the person who drafts the will regarding their property and assets after they die. Also known as a ‘Last Will and Testament’, the will is drafted by the ‘testator’, who should list the assets that make up their estate, and detail who should receive those assets, known as ‘beneficiaries’.

Generally speaking, UK law allows individuals to leave their assets to whomever they wish. This can mean that property and assets are commonly divided amongst family and close friends, but in some circumstances can mean that political parties, charities and even little-known acquaintances can benefit from a will.

Challenging a will

It has become increasingly common for the provisions of a person’s will to be challenged after they have died. Often this is because the terms of the will seem unfair, and in such circumstances a solicitor may be able to make a legal challenge to the will to have the terms amended or the will invalidated.

There are many reasons why a will may be deemed invalid, and these can all give rise to a challenge. Examples of reasons why a will may be deemed invalid include:

  • Capacity – the person making the will did not understand what they were doing
  • Validity – the will was not completed correctly in accordance with the law
  • Undue influence – the person made the will because of undue influence or duress from another party
  • Fraud – the will was fraudulently made or amended
  • Rectification – the will was made in error and does not reflect the testator’s wishes
  • Reasonable provision – certain family members and close partners can appeal on the basis the will does not ‘reasonably’ provide for them

How can I challenge a will for ‘reasonable provision’?

The Inheritance (Provision for Family and Dependants) Act 1965 allows certain family and relatives to challenge a will if they feel that it does not ‘reasonably provide’ for them.

Only certain people can challenge a will for reasonable provision. Examples of who is allowed to challenge for reasonable provision include:

  • Spouse or civil partner
  • Former spouse or civil partner if the deceased did not remarry
  • Cohabitant of deceased
  • Child of deceased
  • Dependent treated as a child of the family
  • Person maintained by deceased immediately before death
  • Mistress or lover in some circumstances

The situation is much harder if the deceased included you in the will but only left a nominal sum. Here it is hard not to conclude that they had thought of you, but consciously decided that you should receive a small amount.

If I successfully challenge a will what happens next?

If the will is declared invalid then the law on intestacy will apply. This is the law that applies when someone dies without a will (known as dying intestate). If you successfully challenge for ‘reasonable provision’ then the court will determine a fair amount to be granted to maintain you, giving consideration to your assets and income and likely needs.

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