Challenging a Will under the Inheritance Act 1975
In recent days a large amount of media attention has been focussed on the case of Kaur v Estate of Karnail Singh & Ors [2023] EWHC 304 (Fam).
The case concerned a widow, Mrs Kaur, who made a challenge to her late husband’s will. Despite being married for 66 years and having seven children together, Mr Singh deceased left his wife nothing. The estate was valued at between £1.2 million and £1.9 million. Mr Singh, who died in 2021 said that he “wished to leave his estate solely down the male line”.
The judge in the case, Mr Justice Peel, decided that Mrs Kaur should get 50% of the Estate as it was obvious that “reasonable provision” has not been made for her. The question many will ask is what is reasonable provision and what can you do if you wish to challenge a will? In this article I will provide an outline of the steps to take if you wish to challenge a will on the ground that reasonable financial provision has not been made to you.
1 – Starting point: What is reasonable financial provision?
The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) provides a mechanism whereby those who are eligible can make a claim against an estate where they feel they have not been given reasonable financial provision. The question of what constitutes reasonable financial provision will depend on a number of factors, such as to what, if any, extent you were financially dependent on the deceased and your relationship to the deceased, i.e., son, daughter, husband, wife.
2 – Who can bring a claim?
Section 1 of the Act lists those who can bring a claim which includes:
- The spouse or civil partner of the deceased
- A former spouse or former civil partner of the deceased, but not one who has remarried or entered a new civil partnership
- Any person who for two years prior to the death, was living with the deceased as if they were a spouse or civil partner
- A child of the deceased
- Any person (not being a child of the deceased) who was treated as a child of the family by the deceased
- Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased
3 – How long do I have to bring a claim?
If you want to make a claim under the Act for reasonable financial provision you have just six months from the grant of probate being issued. This short window for making a claim catches many people unaware and results in them having to make an application out of time. Whilst the court will consider out of time applications, you must have a very good reason for delaying and a strong potential claim against the estate.
4 – What will the court consider when deciding my case?
In deciding whether you should be granted reasonable financial provision the Court will determine an award based on the following criteria, set out in Section 3 (1) of the Act:
- The financial resources and financial needs you have or are likely to have in the foreseeable future
- The financial resources and financial needs which any other eligible applicant has or is likely to have in the foreseeable future
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
- Any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased
- The size and nature of the net estate of the deceased
- Any physical or mental disability of any applicant under the Act or any beneficiary of the estate of the deceased
- Any other matter, including your conduct and the conduct of any other person, which in the circumstances of the case the court may consider relevant
5 – Is Court action the only way forward?
If the parties involved in your claim cannot reach an agreement, then you will have to make a formal court application. However, as court action can be a costly and drawn-out process, most parties usually decide to resolve the claim by way of alternative dispute resolution, usually in the form of a mediation.
A mediation is a more informal process where the parties negotiate, usually with assistance from their legal representatives. The parties will only be bound by what is agreed if they sign a formal settlement agreement at the end of the day of mediation.
How can Lennons help me?
At Lennons we understand how worried, angry and uncertain you may feel if you have not been adequately catered for in a will. Please get in touch with us on 01494 773377, get in touch by email to hello@lennonssolicitors.co.uk, live chat, or by completing our online enquiry form.
DISCLAIMER: The content of this article has been prepared for informational purposes only. This content does not constitute legal advice, nor does it give rise to a solicitor/client relationship. Specialist legal advice should be taken in relation to specific circumstances.