A testator must have a basic level of capacity. The test is not high and the testator must be capable of understanding the nature of making a Will and the effect of the proposed disposition, the extent of the assets which they possess and to gift,  and the “claims” which might justly be made against their estate (for example by dependants).

This is a common cause of claims. It is sometimes sensible where the testator is elderly or infirm to get a medical report confirming their capacity at the time that the Will is executed.

The testator may sometimes be put under inappropriate pressure to make gifts in their Will. This is extremely hard to prove.  The Courts are alert to “odd” provisions – particularly where the principal beneficiary of such a Will has drafted it, or been instrumental in its preparation.

The law concerning disputed Wills/estates is complex. Rapid action can be necessary, for example to comply with the time limits in the Inheritance Act or applications to register caveats at the Probate Registry (preventing the issue of a Grant of Probate).

Once a person dies and there is a Will it is necessary to locate it so that a Grant of Probate can be obtained and the estate duly distributed in accordance with the terms of the Will. These steps can be problematic and complicated for the executor in the following circumstances:

• The original Will is lost or destroyed

• The Will is in the possession of someone who refuses to release it

• Where a Caveat has been entered

• Where assets are held abroad

• Threat of legal action against those seeking to obtain a Grant of Probate

Equally, beneficiaries or persons with an interest in an estate may wish to ‘freeze’ the granting of probate so that a particular dispute or issue can be investigated.

A person can appoint up to four people in a Will to act as executor. Although executors should remain neutral, there is potential for disputes to arise between themselves and the beneficiaries during the administration of an estate. 

The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) enables a child of the deceased to make a claim against their estate in circumstances where the deceased did not make reasonable financial provision for them in their Will (or by an intestacy). 

The scope of what constitutes a child extends to any child of the deceased including illegitimate, legitimated and adopted children of any age and any person treated by the deceased as a child of the marriage or civil partnership.

In recent years the courts have seen a spate of claims under the 1975 Act brought by adult children.  Under Section 3 of the 1975 Act, the court will take into account the following factors when deciding whether a reasonable financial provision has been granted for a claimant:

a) the financial resources and needs of the applicant;

b) the financial resources and needs of any other applicant;

c) the financial resources and needs of the beneficiaries;

d) any obligations and responsibilities of the deceased towards any applicant and any beneficiary;

e) the size and nature of the estate of the deceased;

f) any physical or mental disability of any applicant or beneficiary;

g) any other matter, including conduct, which the court may consider relevant.

The Inheritance Act 1975 may be used to challenge the distribution of an estate either whether the deceased left a Will or did not (died intestate).

The law does require us to make proper provision for surviving spouses, former spouses (and civil partners), children (including adult children), co-habitees (of at least two years standing) and anyone else who was “maintained” by the deceased.

In determining whether to grant an Inheritance Act application the Court has to consider the reasonable requirements of the Applicant. The test for existing spouses and civil partners is akin to their entitlement on a divorce – but in the case of other categories of claimants it is the sum they require to be “maintained”. In considering this the Court must taken into account a specific checklist of criteria.

The Court may in its discretion award continuing maintenance, awards of capital sums or transfers of land (outright or on trust) for the benefit of a successful Applicant.

Any Court application must be issued within six months of the Grant of Representation. It can be difficult for this time limit to be extended and it is therefore vital that early advice is sought if you believe that you are entitled under the Inheritance Act for provision to have been made for you.