Appealing Against a Will

Author: Josh Hall

A worryingly large number of people still do not make a will. The number of intestate deaths is still at a high level often resulting in difficult wrangling over the estate of the deceased person or, in some cases, the Crown simply taking everything. Even those who do make a will, however, are not always safeguarded. There are circumstances in which it is possible to appeal against an individual’s will and this happens more often than you may think, for one of two main reasons: because a person or group think that the will is either invalid, or that it is unfair.

Validity

In order for a Will to be Valid, it has to satisfy several basic conditions. Primarily, it must be signed by the testator (that is, the individual making the will), and must have been witnessed by two other people. One of the most common causes for complaint with regard to the validity of the will is either that the signature of the testator was not witnessed, or that the two witnesses were not present together when the will was signed by both the testator and themselves. Similarly, it is sometimes claimed that the testator was not mentally capable of making the decisions outlined in the will. In these cases, the entire will may be invalid. Furthermore, it sometimes transpires that one or both of the witnesses is also a beneficiary of the will. If this is the case, then the witness in question will not receive anything left to them in the will, and their share will be put back into the estate as a whole. The rest of the will, however, remains valid.

There are very few cases like these in which it is easy to prove that the will is invalid. If you were to contest, for example, that the testator was not mentally capable, then you would require firm medical evidence. You may need to go to court, and you will certainly need expert legal advice, so you should seek this first.

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Dependants

It is also possible to challenge a will on the basis that it does not give ‘reasonable financial provision’ for the dependants of the testator. In order to make a challenge on these grounds you must be either: the spouse or civil partner of the testator; the former spouse or civil partner but you have not remarried; someone who has been financially maintained by the testator; someone who had lived as a partner with the testator for at least two years before their death; or a child of the testator.

If you fulfil one of these criteria and you feel that you have been unfairly left out of the will, you may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This means that you may be able to claim a portion of the estate, but it is very difficult to do so. Although it may not be difficult to prove that you fall within one of the groups listed above, each case is treated on its own merits by a judge. As a result, it is far from certain that the case will go in your favour, and if it does not you may well be landed with a large bill for court expenses. If you are thinking about following this course of action, you should seek legal advice as soon as possible; it is also important to note that a case must be lodged within six months of the granting of probate on the estate.

The Next Step

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7 questions

Ask The Will Expert a Question

TheWillExpert Editor 22/04/2016 at 11:47 am

You need to try and establish whether your brother/girlfriend were listed as "joint tenants" or "tenants in common" with your mother. As joint tenants your brother/girlfriend had equal rights to the whole property with your mother and the the property would have gone to them when she died (she could not have left her ownership of the property to anyone else in her will).
As tenants in common your brother & girlfriend would have owned a different type of share in the property and the property wouldn't automatically have gone to them when your mother died and she could have passed on her share of the property in her will.
If the ownership was the latter, your right would have been preserved and your brother could have been made to sell. See a solicitor and explain what has happened - they should be able to investigate.

Wills mean nothing 21/04/2016 at 10:28 am

My mother left a third share of her house to me in her will. My brother and I are the executors. An amount of money was transferred from my mum's accounts when she died direct to my bank which was a share of her savings which I guess was transferred under the instruction of my brother. However to my knowledge nothing else has been formerly settled. Although I did visit a solicitor and received letters in return from my brother's solicitor who decided not to continue to act for him. My brother and girl friend lived with mum and told her to avoid inheritance tax she should put their names as equal tenants. I was unaware of this arrangement and my mum clearly did not realise that unless my brother and his girl friend sell the house I can not claim my share of the inheritance. My brother has also indicated he never intends to sell the house for this reason and will pass it on to his only son to continue to live in when they pass away. This would seem to indicate I will never inherit as my mum wished during my life time and I consider this to be unfair and planned by my brother. My mum wrote her will to be fair to us but it would seem my mums wishes will not be undertaken in my life time. Unless my brother can be made to sell the house?

TheWillExpert Editor 01/10/2015 at 2:08 pm

No, if a share of the property was left to his daughter then once the house is sold it should be given to her or put in trust etc if she cannot be traced at the moment. You cannot offset the care against part of the property that doesn't belong to her. Was the house rented out to cover care costs etc while your mother was in care?

Izzie 27/09/2015 at 11:23 pm

My brother, who died in 2010, had a third share in our house, my sister and I each have a share. He left his share in his will to his daughter but to be paid only once my mother had died (the house was originally hers and she gifted it to us 21years ago). My mother died this year and we are considering selling it. Where do we stand as to my brothers daughters share ... we have had no contact with her and neither if us know where she lives. My mother was in residential care for the last eight years of her life, for which my sister and I contributed towards and although we know she sent her cards we don't believe she ever visited. Can we offset part of the cost of her care against this third share? And whose responsibility is it to find her and let her know the situation ... we believe if she knew my mother had died she would be wanting her share but there has been no contact from her. We were not executors to my brothers will. He died in Egypt where he lived for many years and his executors were,I believe, business contacts in this country, but the will was registered in Egypt as he was too ill to return here. Many thanks for your help.

Gill 02/08/2015 at 3:20 pm

Hi can anyone tell me if you are told you are to receive some money from a deceased relative and that you are a beneficiary should you be given a copy of the will ??

Complicated 01/11/2013 at 10:44 am

My Dad past away back in 2005 aged 47. He didn't make a will and my mum wasn't married to him even though they had been together for over 15 years.
So she had to put a in claim against the estate and received £48,000 it cost £100,000's in legal fees.
His parents gave him 25% of a farm and now that share is mine. My grandparents are still alive and are now in their 80's. The problem is my Dad had a brother and I'm worried he will receive 75% of the farm and I remain at 25%. In my opinion it should be 50/50 as they were brothers however as I am a grandson representing my Dad I'm not sure how it will pan out. If the will went 75% to his brother would I have a good chance of winning an appeal.

Betrayed 27/10/2013 at 4:32 pm

My mother in law age 97 just passed away. I live in a different city but saw her as much as my health permitted and frequent phone calls. My ex business partner and friend of thirty plus years, appears to have seized the opportunity of endearing himself to her by doing the odd job for her. Now I find out to what extent, he is named in the will for 50% and when I approached him on this matter he said what do you deserve. She was at 97 not of totally sound mind yet her will was apparently written just a year ago. He was also named Executor. I built her home, furnished most of it for her and while living in the same town did all I could for her. Once I moved this "friend" suddenly started ggoing over and making himself invaluable. I asked why he didn't tell me what had been done - he said my mother in law said not to tell anyone. Her daughter (now deceased) and I took care of her for many years. Can I appeal this will?

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