Wealden Times | 189 | November 2017 | Gift supplement inside

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Is it wrong to challenge
someone’s will?
Is it right that a disappointed family
member or friend can challenge a will
which represents the last recorded
wishes of its maker? Philip Youdan from
law firm Cripps discusses the issues.
The succession laws of England and Wales are
based on freedom of testamentary capacity –
in short, the ability to leave your own wealth
to the person or people of your choice.
Against this backdrop, can it ever be right for
a court to go behind a person’s expressed
wishes, after their death, and decide upon
an alternative allocation of their assets?
Whatever your personal view, the reality
is that there are certain circumstances
when a court can intervene.
Whose wishes?
An assumption underpinning freedom of
testamentary capacity is that the testator is
always properly able to express his wishes.
This is not always the case – sometimes
the testator does not have the mental
faculties to express a valid opinion or
the will does not reflect their wishes,
either because they did not understand
it or undue influence was applied.
If this is established, the court has the
power to set aside the injustice that would
be caused by allowing the will to stand.
Dereliction of duty
Certain relationships carry with them
responsibility to provide for another –
obvious examples are between spouses/
partners and between parents and children.
In the same way that the law provides a
mechanism for ensuring such responsibilities
are met during lifetime (for example
divorce laws), in such circumstances
it would seem odd if the law made no
provision for what happens on death.
This is the purpose of the Inheritance
(Provision for Family and Dependants) Act
1975 (“the Act”). However, the Act only
applies to certain categories of people
– those to whom the deceased could be
considered to have owed some degree
of responsibility; for example spouses
and civil partners, cohabitees, children
and people dependent upon them.
In this situation the court will assess all of the
facts to determine whether it is appropriate
for the person challenging the will to receive
an amount (or a larger amount) from the
estate to provide for their maintenance.
Whilst claims by, for example, civil partners
and spouses or young children under the Act
are perhaps viewed as uncontroversial, one
area of the Act which is more difficult to follow
is the right of adult children to pursue claims.
In what circumstances, if any, should a court
make provision for an adult child against
the wishes of the testator? Once a child
becomes an adult, are they not responsible
for themselves and for their own life choices
and therefore cannot expect to be bailed
out by their parents? However, if the adult
child is in real need, and especially where
that need might arise from the conduct of the
parent or is due to disability, many people
would agree that it is right that a parent’s
responsibilities remain and should be
enforced; the alternative being that the state
is left to shoulder the financial burden instead.
Promises, promises
Another type of claim, known as proprietory
estoppel, arises where someone is seeking
to enforce a promise they say the deceased
made to them before their death which
they then relied upon to their detriment. An
example of this is where A has worked on
B’s farm for no or low pay in reliance on a
promise that the farm will be theirs on B’s
death. If that farm is then left to C, is that fair
and should A be able to seek redress?
The court’s view is that this type of
promise creates an obligation that must
be protected and, if the necessary
ingredients of a proprietory estoppel claim
can be established, it will intervene.
A matter of perspective?
As someone who represents those wanting
to challenge a will and those wanting to
defend the status quo, my experience is that
the law is well placed at present to protect
both groups – to allow for a court to dismiss
a claim that does not have merit whilst
enabling a challenge to be brought where
the facts warrant the court intervening.
Philip Youdan
For more information please contact
Philip Youdan on 01732 224 013 or
at philip.youdan@cripps.co.uk.
You can also sign up to our dedicated
blog at www.cripps.co.uk
www.cripps.co.uk @crippslaw This article gives examples and is intended for general guidance only