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Can a stepchild contest a Will?
- AuthorKevin Horn
Losing a loved one will be a devastating time for all concerned which can unfortunately also give rise to family disputes, particularly over the distribution of the estate as determined by the Will. Contesting a Will and bringing a claim against the estate of a member of the family are complicated areas of law and the likely success of a claim will depend on many different factors, not least as to who can make a claim and on what grounds, which can lead to confusion. Recently, we have seen a number of high profile cases in which the question for the Court to consider was whether a step-child can bring a claim against an estate. Kevin Horn, Private Client Partner, discusses more about the situations in which a step-child could be successful and gives an overview as to the process if you are considering contesting a Will or applying for a share of the estate as you feel some provision should have been made for you in the Will, or if the provision made is inadequate.
On what grounds can I dispute a Will?
Fundamentally, the Courts will strive to respect the wishes of the person writing the Will (the testator) and so an individual cannot simply bring a claim because they are surprised by the distribution of the estate. However, where there is evidence that the validity or execution of the Will could be questioned, it may be possible to bring a claim.
There are four grounds for doing so under this remit, which are:
- Lack of testamentary capacity – If there is a question over whether the testator was of “sound mind, memory and understanding” at the time of creating the Will and when they sign the document there could be grounds for a claim. The testator must have a thorough understanding of the true nature of their estate and the consequences of their choices in its distribution. Additional care may also need to be taken when the testator has a particular disability, for example if they are deaf, blind, paralysed or is not able to physically sign the Will themselves due to another impediment.
- Invalid Will under the Wills Act 1837 – This Act sets out certain rules as to what constitutes a valid Will, for example, the Will must be in writing and be signed by the person writing the Will as well as two witnesses. If any of the requirements detailed in the Wills Act 1837 are not met, then the Will may be deemed invalid based on lack of due execution.
- The Will was made under coercion or influence – A person may be able to bring a claim if they feel there is evidence that the testator was manipulated into distributing their estate a certain way. This is a particularly difficult claim to substantiate, which is why evidence is required to support any claims.
- Fraud or forgery – If it can be proved that the Will has been forged or fraudulent information has been supplied, it would be considered to be invalid.
As an alternative to challenging the validity of the Will, it may be possible for a claim to be made under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) on the grounds that there hasn’t been reasonable financial provision made for an individual. If the nature of the relationship between you and the person who died renders you eligible, you can bring a claim. Eligibility is no guarantee of success however and the Court would consider all of the circumstances in coming to a decision as to whether the provision made by the Will, or in the absence of a Will, the application of the rules of intestacy, was reasonable.
Who can contest a Will?
The rules are clear regarding who can contest a Will:
- Spouse, or former spouse
- A person cohabiting with the deceased for at least two years before they died
- A child of the deceased, or a child treated by the deceased as a child of his or her family
- Any other person who may have been financially dependent on the deceased before they died.
A stepchild is almost certain to be able to bring a claim if they can show that they had been treated as “a child of the family” but every case depends on its own particular facts. It would therefore be prudent for anyone thinking about bringing a claim to take legal advice.
When should I contest a Will/bring a claim?
The time limit that you have will depend on the reason you are bringing the claim. For claims regarding the validity of a Will, they should be brought before the Will is proved but they can be brought any time after that. 12 years from the date you believe you have a claim is generally considered to be the limit but given that the estate will have been administered long before then it may be difficult to succeed if left too long.
Once probate has been granted, this allows the estate to be distributed and so bringing a claim once this has begun becomes more challenging. Claims for provision against an estate where the validity of the Will is not challenged (and usually claims are made in tandem) must be brought within six months from the issue of the grant of probate unless the time is extended by the Court. Whilst claims for extension of time are possible you have to be able to show that you acted as soon as you could to be successful.
Kevin concludes, “Situations such as this highlight the importance of taking the appropriate precautionary measures during our lives to avoid disputes between our loved ones at a later date. Having a Will in place and discussing your decisions with your family and friends will prepare them for what lies ahead and will enable you to address such concerns. Having the right legal advice will also assist in avoiding potential claims of invalidity of the Will, and will allow you to discuss the most suitable Will for you. A Life Interest Trust Will for example may facilitate in protecting certain assets, particularly if you are on your second marriage. It’s never too early to have these conversations and make the right choices for your family in the future.”
To review your Will or if you would like to discuss disputing a Will with Kevin or a member of the Private Client team, you can contact us today on 01329 222075 or email firstname.lastname@example.org.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.