How to defend a challenge on your spouse’s Will
There are more than 700,000 step-families in the UK, according to the most recent figures from the Office for National Statistics. Sadly, there has been significant growth in the number of inheritance disputes between first and second families, with stepchildren having several routes to challenge their parent’s Will.
Rectification and professional negligence
If your stepchildren claim that the Will did not reflect the true intentions of your spouse because of a clerical error – such as the Will-drafter leaving out a stepchild or misunderstanding the wishes of your spouse – they may bring an application for rectification.
The file and notes of the Will-drafter would be scrutinised to see if the Will did reflect your spouse’s wishes. If a clerical error or misunderstanding is found, the court may agree to a rectification.
If, however, the file shows that the Will-drafter did understand your spouse’s instructions but misapplied the law, your stepchildren would have to bring a claim for professional negligence against the Will-drafter instead.
What happens if the Will is challenged for invalidity?
Under the Wills Act 1837 a Will is only valid if it is:
- in writing;
- made by a person aged 18 years old or over;
- signed by the testator with the intention of creating a valid Will and signed by two witnesses;
- made voluntarily and without duress from someone else; and
- made by a person who is of sound mind.
Undue influence
Even if the first three legal requirements are complied with, your stepchildren might claim that you put undue pressure on their parent to write the Will in your favour. Case law has shown that allegations of such coercion can take many forms, including threats of physical violence, verbal bullying, or the more subtle poisoning of a person’s mind. The burden of evidence to prove undue influence is high and the court will only accept it if they are satisfied that undue influence is the only explanation for the parent making the Will the way they did.
Lack of mental capacity
Another challenge your stepchildren might mount is claiming that their parent was not in their right mind when they made the Will. If your spouse appeared to be rational when they made the Will, it will be for your stepchildren to prove that their parent was suffering from a disorder of the mind which could have influenced their mindset, or that they did not understand it: that they were making a Will and the effect of the Will’s contents; the significance of including or excluding someone from their Will; or the value of their estate.
Fraud or forgery
Alternatively, your stepchildren might contest the Will on the grounds of fraud or forgery. This might include claims that you got someone to impersonate your spouse to execute the Will, or that you lied about your stepchildren’s character which caused your spouse to omit them from the Will. Even if fraud was not committed in writing the Will, your stepchildren could also claim that you deliberately destroyed the Will to get a greater share of the estate under the intestacy rules (see below).
Challenges for fraud or forgery are rare, however, because the required burden of proof is high and the main witness (your spouse) is unable to give evidence. Your stepchildren might instead claim that the Will was made without your spouse’s knowledge and approval. This puts the burden of proof on you to produce evidence that the Will is valid.
Where a Will is successfully challenged on the above grounds and the court asserts the Will is invalid, if there is not an earlier valid Will, then your spouse’s estate Will be distributed according to the strict rules of intestacy.
What if your spouse is found to have died intestate?
If there is no valid Will, under the intestacy rules your stepchildren will only inherit anything if your late spouse’s estate was worth more than a certain amount.
The rules stipulate that you will inherit all of your late spouse’s personal belongings, the first £322,000 of the estate, and half of the remaining estate. The family home would go straight to you if you owned it as joint tenants and would only form part of the estate if you held it as tenants in common.
Claims for reasonable financial provision
If your spouse died intestate or did not provide for your stepchildren in their Will, they may be able to make a claim on their parent’s estate for
‘reasonable financial provision’ if they are classed as dependants under the Inheritance (Provision for Family and Dependants) Act 1975.
The court will consider several factors in making financial provision for your stepchildren including: the size of the estate and the number of people with an interest in it; the financial needs of all potential beneficiaries; any responsibilities your spouse had towards their children; and any mental or physical disability these children may have.
Proprietary estoppel
Your stepchildren may bring a claim for proprietary estoppel if they were promised something by your spouse during their lifetime but this was not reflected in the Will. They would have to show they were promised something they did not receive and that they suffered detriment as a result of relying on the promise.
How we can help
Any inheritance dispute is upsetting and can be complicated, time-consuming, and expensive, so it is imperative to seek expert legal advice up front.
Our team of dispute resolution specialists will talk you through your options and work tirelessly to negotiate a settlement between you and your stepchildren that satisfies all parties, without the matter having to go to court.
If litigation is inevitable, they will help you gather all the evidence needed to defend the claim against you as robustly as possible and will be by your side to offer legal advice and representation when you get your day in court.
For further information, please contact Norman Hunter-Goulder in the dispute resolution team on 01480 702207 or email [email protected].
Norman Hunter-Goulder
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