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CONTESTING A WILL – BASIC PRINCIPLES (PART 2 OF 2)

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This blog is the second of two discussing the basic principles that a potential claimant would need to take into account if it appears they are likely to have a claim in relation to an estate. In our first blog we concentrated in the legal principles a potential Claimant would have to consider when challenging the legal validity of a Will. Here we go beyond that and discuss potential claims when the legal validity of a Will is not being challenged per se (but is accepted although NOTE all of these claims can be run at the same time). We highlight below then the second and third types of general claim, which are:

2. A claim for a share of a near relatives estate under the Inheritance (Provision for Family and Dependants) Act 1975;

3. A claim that in effect, you already own a share of the estate.

A claim for a share of a near relatives estate under the Inheritance (Provision for Family and Dependants) Act 1975

This has a limited number of potential types of Claimant. You can only really claim if you are the spouse (husband or wife) of the deceased and his/her child or dependant. You can though bring a claim if you were treated as the husband or wife of the deceased (although you weren’t married to him/her) for the two year period before death or where you were treated as a child of the deceased (even though again you are not actually his/her child).

There are a number of “statutory” guidelines which the court must review when it considers firstly whether the Will makes sufficient financial provision for you and secondly as to how much you should receive by way of financial provision (where insufficient was provided under the terms of the deceased’s Will).

These “factors” are in general set out under section 3(1) of the Inheritance (Provision for Family and Dependants) Act 1975 (http://www.legislation.gov.uk/ukpga/1975/63/section/3). They include the financial needs and resources of the applicant (Claimant) and any beneficiary. Any obligations and responsibilities that the deceased had towards the applicant and any beneficiary. The size and nature of the estate. Any health issues. Conduct (which can include the conduct of the deceased, the applicant and/or of any beneficiary). For more information, please consider (https://www.thegazette.co.uk/wills-and-probate/content/103458).

A claim that you already own a share of the estate
This can give rise to quite complex claims under the so-called rules of “equity” where, in reality, you are alleging the legal title of the property which belonged to the deceased is not entirely accurate. Commonly such claims can arise where on the basis of (usually) a verbal promise by the deceased, you have used or occupied property which was legally owned by him/her on the basis you would either inherit it in due course or it would be transferred to you. Such cases are usually proven because of a dramatic change in position on your part whereby (for example) you have spent considerable amounts of your money to improve and/or refurbish it. Also where on the basis of such a promise you have worked for a nominal sum within a business related to the property (typically a farm!). In general such claims are called “Proprietary Estoppel” claims. By way of example, please consider:

https://www.thegazette.co.uk/all-notices/content/101129

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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