Legal advice from Natalie Fletcher, Litigation Legal Executive on the subject of Wills and can they be overturned?
Q: Is there any point in making a Will now that they can be overruled?
A: Most definitely yes! The starting point for anyone making a Will in England and Wales is that you are free to leave your estate to whoever you wish to leave it, whether that is your immediate family, or a charity for example.
You may have seen however, recent news reports relating to a case in which a claimant was successful in having her estranged mother’s Will overturned by the Court of Appeal, enabling her to inherit a proportion of the estate despite her original exclusion from the Will.
This type of claim was brought under the Inheritance Act of 1975. Claims under this Act can be brought by a person who has been excluded from a Will completely or where they feel that they have received a smaller ‘cut’ than they thought they might have received – provided that they fall within one of the very strict categories of Claimant set out in the Act – such as a spouse, child (including adult child), cohabitee or dependent. A common example that we see in practice is where children receive unequal shares of their parents’ estate. In these circumstances it may be possible for a claim to brought for what is known as ‘reasonable financial provision’.
Historically, it has been difficult for adult children to bring a claim under the Inheritance Act, particularly where they are financially stable and have their own earning capability. That’s not to say however that it is impossible. But, if you have a child who is a home owner for example, and earns a high salary and goes on expensive holidays etc. And another child who is not perhaps in such a favourable position and is struggling financially, then you may be justified in excluding the high earning child from your Will.
There are a number of factors the Court must take into consideration when faced with a decision about overturning the contents of a Will. And of course every case is decided on its’ individual facts - therefore just because one Will has been overruled it does not mean that yours will be too.
We would always recommend that you should make a Will, and that you seek advice from an experienced lawyer, particularly if you feel that it may be susceptible to a challenge. There are steps that can be taken, and provisions put into place to protect the choices you make when you give instructions for your Will.
For advice on contesting a Will please contact Natalie Fletcher in our Frodsham office on 01928 739300 or Natalie.firstname.lastname@example.org