Challenging a Will
Have you been excluded from a Will?
Does a loved one’s Will fail to make reasonable financial provision for you?
Jacqueline Penfold, a Partner in our Litigation Department, answers questions on the action that you may be able to take in these circumstances.
Q My Partner Tom and I have been in a relationship together for many years. We lived together and he was the main “bread winner”. Tom died recently but he did not make any provision for me in his Will. I am now struggling to make ends meet on my own. Is there anything I can do?
A You may be able to make a claim against Tom’s estate on the grounds that his Will has not made “reasonable financial provision” for you under the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain prescribed categories of people to bring a claim against a deceased’s estate.
Q Who can bring a claim?
A Those persons eligible to bring a claim are:-
- The spouse or civil partner of the deceased and in some circumstances a former spouse or civil partner.
- A cohabitee – subject to qualifying criteria.
- A child of the deceased or someone who was treated by the deceased as a child of the family.
- Any person who immediately before the death of the deceased was being maintained by the deceased.
Q What do I need to establish to bring a claim?
A In your case, in order to qualify to bring a claim, you will need to prove that you were either Tom’s cohabitee or that you were being maintained by Tom prior to his death.
To qualify as a cohabitee you will need to establish that:-
- The cohabitation had continued for the whole of the two years immediately before Tom’s death.
- You and Tom lived together in the same household.
- You and Tom were living together as husband and wife or as civil partners.
Alternatively, if you cannot meet the criteria for cohabitees (e.g. you have not lived together for long enough) then you may still be able to bring a claim if you can show that immediately before Tom’s death, you were being maintained, either wholly or partly, by Tom. A person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) if the deceased was making a substantial contribution in money or monies worth towards the reasonable needs of that person.
Q OK, I think I qualify. How will the Courts decide if I should receive any money from Tom’s estate?
A The Court will have regard to a number of factors including:-
- Your future needs and resources including your earning capacity.
- The future financial needs and resources (including earning capacity) of any other person entitled to bring a claim (a claimant).
- The future financial needs and resources of any beneficiary (including earning capacity).
- Tom’s obligations and responsibilities towards you, any other claimant or beneficiary.
- The size and nature of Tom’s estate.
- The physical and/or mental condition of you, any other claimant or any beneficiary.
- Any other matter the Court considers relevant, including the conduct of any party.
In addition if you meet the test for a cohabitant (see above) then the Court will also look at:-
- Your age.
- How long you lived together.
- Any contribution made by you to the care and welfare of the family and the home.
If you do not qualify as a cohabitant but bring a claim on the basis that you were being maintained by Tom, regard will also be had to:-
- The length of time for which Tom maintained you.
- The basis on which Tom maintained you.
- The extent of the contribution made by way of maintenance.
- Whether and, if so, to what extent Tom assumed responsibility for your maintenance.
Q I want to bring a claim – what should I do now?
A There are very strict time limits for making this type of claim and you must act quickly. You must issue a claim (i.e. by issuing Court proceedings) before the expiration of 6 months from the date of a Grant to the estate (i.e. a Grant of Probate or Letters of Administration). It is therefore important you obtain legal advice without delay.
If you need any advice or assistance in connection with challenging a Will, please contact Jacqueline Penfold on 01323 727321.
