This article was last updated 0 months ago and may not represent current law.
Challenging an Inheritance
What is challenging a Will about?
A common question in will disputes is what to do if one has been excluded or left significantly less than what might be reasonably expected (for example if a parent leaves significantly less to children from a first relationship than from a second) in someone’s Will. As family dynamics have shifted over the course of the 20th and 21st centuries, challenging the distribution of an estate has grown increasingly common.
Typically, a person making a Will (‘Testator’) is free to do as they please in their Will. So as long as the Will has been made properly and validly executed it will stand. The law does, however, provide a fix for someone who should have been in the will but is not included.
It is worth noting that it is also possible to bring a claim even when the deceased made no Will and has, therefore, died ‘intestate’.
Who can bring a claim for inheritance?
The ability to contest either outright exclusion or unreasonable provision is contained in a piece of legislation called the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). Essentially, IPFDA allows certain individuals to contest the distribution of a deceased’s estate including:
- Spouses of the deceased and, in some limited circumstances, ex-spouses
- Co-habitees living together as spouses or partner with the deceased
- Children of the deceased
- People treated as a ‘child of the family’ for example step-children
- Family members dependent on the deceased or anyone maintained by the deceased at the date of their death.
As you can see this is a wide list of potential people who can bring a claim against the estate but it is worth noting that each set of circumstances will need to be considered before a solicitor can advise if a claim can be brought.
How do I start a claim for inheritance?
Claims for inheritance are like every other claim in civil courts. First, a letter setting out why you believe you have a claim and how much you are claiming is sent to the people dealing with the estate of the deceased. They will then have a choice to accept the claim, negotiate, or to deny the claim. If negotiations are unsuccessful or the claim is denied then formal court action must be brought if you still wish to pursue the claim
When should you bring your claim?
With this type of claim, it is very important to seek professional legal advice as soon as possible. This is because inheritance claims under IPFDA must be brought within six months of the date of issue of a Grant of Probate. The Grant is the formal legal document that confirms the power of the personal representatives of the deceased to deal with the estate.
It is possible to bring a claim outside of this time limit but you must be able to convince the court that you had a genuine reason for not doing so within six months.
How much does an inheritance claim cost?
These claims are sometimes run on Conditional Fee Agreements (‘CFA’), often called “no win no fee” agreements, or with the benefit of Legal Expenses Insurance. Under a CFA the legal fees are deferred until there is a success, either a settlement or a win at Court, and you don’t pay if you don’t get a result. Whether a CFA is on offer for your claim is for the solicitor who takes it on to decide.
Alternatively, the claim can be privately funded. Fees can run into the tens of thousands but as above, if you are successful at court then you may recover your costs or at least the majority of them, from the estate. If a settlement is reached then your costs will be part of the negotiations.
How I can help
I don’t act on contested probate claims myself. I refer them to my Nexa colleagues Andrew King and Louise Sackey, who deal with contested probate and will quote their own fee, so if you feel you have not been made reasonable provision for then please do get in touch and I will introduce you. I know that when faced with this issue, it can be a very emotional and difficult time especially as the dispute will often involve other family members.
Written by Steven Mather, a business solicitor acting on company sales and purchases. This is general information about the law, not legal advice on your situation. Law correct as at .
