The Court will take into account the following guidelines when considering a claim brought under the 1975 Act.
These are as follows:
- The financial needs and resources of the beneficiaries and applicants (if they are not a beneficiary)
- Any obligations and responsibilities the deceased had towards any beneficiary or applicant
- The size and nature of the estate
- Any mental or physical disability of the beneficiary or applicant.
When considering claims brought by a spouse or civil partner, the Courts will consider the age of the applicant and duration of the marriage or civil partnership.
The test when considering the standard of provision is "such provision as would be reasonable in all the circumstances to maintain the applicant."
If the applicant is successful then the courts will decide what award should be made. The Will remains valid, but the way assets are distributed will be varied by the court to make provision for the applicant. This varies by case as what award is appropriate will depend on the circumstances of the applicant, the size of the testator's estate, and what assets are available.
For the invalidity claims the outcome is very different. If the claimant is successful in bringing their claim and the testator had made an earlier Will, the estate will simply be distributed in accordance with the earlier Will. However, if the testator had not made an earlier Will, their estate will pass in accordance with the laws of intestacy.
Is there a Time Limit for Contesting a Will?
Yes, but again this varies. A provision claim must be brought within 6 months of the grant of probate. It is therefore advisable for executors not to distribute the estate for at least 6 months from the grant of probate or even wait another 4 months after that as the applicants have 4 months from the issue of proceedings to serve them on the other side. If an executor waits before distributing the estate they are protected from any liability under the 1975 Act.
For claims that the Will is invalid there is no time limit.
What Happens if an Executor or Trustee Contests the Will?
If an executor or trustee contests the Will for any reason, they simply need to renounce their position as there would be a conflict of interest if they continued to act. It is always advisable to appoint substitute executors and trustees.
As more and more wills are being contested by disappointed family members who believe they should have had either a share or a greater share of the inheritance, cases tend to fall in the public eye.
Let's take a look at an earlier case of Ilott v Mitson and Others, 2015.
In this case, Mrs Ilott brought a successful claim under by the 1975 Act against her mothers' estate despite being excluded from her mother's Will. The estate was valued at around £480,000 and had been left to 3 animal charities.
Mrs Ilott was estranged and therefore her mother had deliberately excluded her daughter from the Will and instead left her estate to 3 animal charities which it was found she had no connection with.
Previously, adult children who tried to claim under the Inheritance Act on the grounds of reasonable financial provision not being made for them, were unsuccessful as there was no evidence that as an adult, they were being provided for by their parents. Despite this, at first instance, Mrs Ilott was successful in her claim and was awarded £50,000.
The decision was appealed by Mrs Ilott on the grounds that the award was insufficient as it would deprive her of her means tested benefits and not provide her with enough funds to purchase the housing association property she was currently residing in. The Court of Appeal awarded her €143,000 to enable her to buy her home along with an additional €20,000 for income.
The decision was appealed to the Supreme Court who held that as Mrs Ilott had not been financially dependent on her mother, she did not require an income and that any provision was reasonable given the circumstances. Her original award of was therefore reinstated.
More recently, this month, there is yet another case in the public eye where a 77 year old has brought a claim against his niece, Lady Natalie Wackett, for half a share of his father's £2.4 million fortune on the basis that he was written out of the Will for being an "unwanted baby.'
He was born during World War 2 while his father was serving in the RAF and at the time his parents were unmarried. It was for this reason that his parents grew to resent him and favoured his siblings instead.
Mr Johnston, the claimant, said his parents always resented him and his mother often told him that she "would have been a Hollywood star if it wasn't for you" as she had always dreamed of being on screen. It was relevant however that his father had promised that the income generated by the family business would 'provide me with an income for life!'
As he grew older, the relationship continued to be strained between Mr Johnston and his father which led to his father cutting him out of the family inheritance and instead leaving all his inheritance to his granddaughter.
Mr Johnston argued that he is hard up and works as a bus driver to keep afloat. This is in comparison to his niece who was given her grandparents entire fortune and has the family business.
Lady Wackett in comparison argues that he was not an "unwanted war baby" and was loved by his family. Her case is that his gambling habit along with cheating the family business is what drove the family apart. In addition, he had not looked after his parents as they grew older, did not reconcile with them or even attend their funerals.
The case continues.
7 April 2020
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