Unlike in some countries, the law of England and Wales does not make it compulsory for individuals to include certain relatives within their Wills or leave them minimum amounts. However, there are options to raise challenges in certain circumstances.

At Gosschalks, we are seeing 5 big types of claim:

1. Claim for Reasonable Provision under the Inheritance Act 1975;
2. Invalid Will - Lack of Mental Capacity or Formal Issues
3. Claims based on Promises (Estoppel);
4. Undue Influence;
5. Being Turned Against Somebody (Fraudulent Calumny).

Claim for Reasonable Provision under the Inheritance Act 1975

It is very difficult for a Will to completely prevent any challenge under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”). A successful claim under the Inheritance Act effectively overwrites and re-writes a Will (or intestacy).

An Inheritance Act claim can be raised when a Will or the intestacy rules fail to make reasonable financial provision for you and you had one of the following relationships with the deceased: a spouse; cohabiting partner; civil partner; child; person treated as "child of the family", or; a maintained dependent.

If you are one of the above people, then you will likely be eligible to make a claim. The next step to being successful is to prove whether what was (or was not) left to you was reasonable. The Court has a large amount of discretion when considering that question but must consider:

• the financial resources and financial needs of:
  • the applicant;
  • any other applicant; and/or
  • any beneficiary of the estate;
• any obligations and responsibilities of the deceased;
• the size and nature of the net estate;
• any physical or mental disability of interested people;
• any other matter the court may consider relevant, including the conduct of the applicant or any other person.

It is possible for adult children to bring claims under the Inheritance Act and claims may be more likely to succeed where the applicant is in difficult financial circumstances.

Claims based on Promises (Estoppel)

These claims come about based on promises like “this will be yours when I’m gone” when it can be proven that those promises are relied on. The final aspect is whether, to your detriment, you went out of your way relying on the promise such as by caring for the promisor, carrying out work for them or moving in with them to help them.

We have seen a notable rise in the number of these promise-based claims, particularly as to the inheritance of farms, where it is so important whether the land passes down from generation to generation.

These claims can be made whilst the promisor is still alive. The advantage of doing so is that it guarantees certainty as to the division of assets upon death.

Invalid Will - Lack of Mental Capacity or Formal Issues

Anyone signing a Will has to have mental capacity to do so. That means that they must not have been suffering from delusions and must have understood what they were doing, what the terms of the Will were, what they owned (in general) and who they wanted to benefit.

A Will must also be in writing and signed in front of two witnesses.

Undue Influence

Undue influence may occur when someone who signed a Will was influenced and coerced into it including certain terms. Or it can occur when someone makes gifts during their lifetime which fall foul of the tests of undue influence.

For a Will to be invalid for undue influence, actual coercion must be shown so that if the person signing the Will was asked they would say “I don’t want to do this but I have no choice.”

Coercion would also make a lifetime gift invalid. On top of that, lifetime gifts can be made invalid on the basis of presumed undue influence, where the law presumes that the person in a dominant position may have taken advantage of the other person’s vulnerability or dependence. The person claiming doesn’t need to prove the undue influence, they simply need to prove:

(a) the existence of a relationship of trust and confidence;

(b) a questionable transaction.

It’s then for the person who received the gift to disprove the presumption of undue influence.

Being Turned Against Somebody (Fraudulent Calumny)

In these cases, the person signing the Will has “been turned against” or has “had their mind poisoned” against somebody who they would have otherwise left an inheritance.

A strong set of facts and carefully gathered evidence will be crucial for success. These claims often centre upon family relationships and even seemingly trivial information can provide an insight into the wider family dynamic.

Final Thoughts

It’s natural to not know where to turn when faced with circumstances like this. By simply asking questions, you’re already taking the right steps. If anything looks questionable or you just want peace of mind, speak to a solicitor who specialises in Will and Inheritance disputes.

You’re not alone, and Gosschalks is here to help. Contact us today to book in a call with one of our experienced solicitors.

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About the author: Ben Marsden, Ellen Boote, Allanah Hutchinson