Can Grandchildren Contest a Will? (UK)

The death of a grandparent is often someone's first experience of grief, and there can be a lot of emotional strain to deal with in the aftermath. This becomes even more complicated for grandchildren who find that they have been left out of the deceased person's will - especially if they were financially dependent on their grandparent. Whether this was done on purpose or by accident, it can create both financial and emotional turmoil for the person or people involved.

In some cases, it is possible to challenge a will when you have been left out. This can be done by a grandchild, the grandchild's parent, other family members or anyone who has an interest in the will, but it must be based on solid legal grounds. If this type of challenge is successful, the will is overturned and, if an earlier will can be found, this must be used instead.

Alternatively, those who were dependent on the deceased, and for whom the will has failed to make reasonable financial provision, can often make a claim under the Inheritance Act. Claims of this nature result in the court allocating a certain percentage of the funds in the estate to the disinherited grandchild or grandchildren, but the other provisions of the will remain in place and are not overturned.

It is vital to seek professional legal advice before pursuing any course of action, as grandchildren challenging a valid will could face significant court fees and legal costs without any hope of success. Here, the experienced contentious probate solicitors at JMW explain the grounds for contested wills, the options for grandchildren seeking reasonable financial provision, and the evidence you might need to provide.

What Are Inheritance Act Claims?

In most cases, grandchildren contest wills because they have not been left with reasonable financial provision under the terms of their grandparent's will. An Inheritance Act claim is often an option in cases where there is no doubt about the legitimacy of the will, or the circumstances under which it was written, but where you have not received a gift.

The basis for this is the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain parties in England and Wales to claim money from an estate. It is usually necessary to demonstrate that you were being maintained, either wholly or partly, by the deceased at the time of their death in order to claim. This means showing that the deceased was making a substantial contribution to your needs, which could be financial, housing, or other forms of support. However, this requirement does not always apply to family members, including grandchildren.

For a grandchild to make a successful claim, they must establish that the deceased's will does not make reasonable financial provision for them. Alternatively, if the person died without a will, their estate will be distributed according to the intestacy rules, which outline a default distribution of assets based on a hierarchical list of the deceased's relatives. In many cases, a grandparent's own children will inherit most or all of the assets, which could leave their grandchildren without reasonable financial provision.

Each case is judged on its individual merits, and the court will consider factors such as the grandchild's financial needs and resources, the size and nature of the estate, and the obligations and responsibilities that the deceased had towards them. It is important for grandchildren considering such a claim to seek legal advice, as these cases can be complex and you must provide evidence. However, it is often possible to challenge a will and receive an inheritance through this legal action.

When Can You Challenge a Will?

In England and Wales, interested parties with sufficient legal grounds can challenge the legitimacy or validity of someone's will. Interested parties generally include the deceased's spouse or civil partner, former spouses or civil partners, children (and those who were treated as a child of the family), and grandchildren, along with friends and anyone else who could have expected to benefit from the will.

The grounds for contesting a will include:

• Lack of testamentary capacity: any person making a will (also called a testator) must have the mental capacity to understand the nature of making a will, the extent of the assets that they are disposing of, and the implications of including or excluding certain people from the will. If you believe that the testator lacked this capacity at the time they made their will, you can contest it on these grounds.
• Lack of valid execution: under the Wills Act 1837, a will must be written, signed by the testator (or by someone else in their presence and at their direction), and witnessed by two individuals who must also sign the will in the presence of the testator. If these conditions were not met, the will can be contested.
• Undue influence or coercion: if the testator was coerced or manipulated into making a will that did not reflect their true intentions, the will can be contested on the grounds of undue influence. This requires a lot of proof, as the law assumes that a will was freely signed by the testator.
• Fraud or forgery: if someone falsifies a will or the testator's signature, or if the testator is tricked into signing a will under the belief that it is another document, the will can be contested on grounds of fraud.
• Lack of knowledge and approval: If there is reason to believe that the testator did not understand or approve all the contents of the will - for example, if they relied on someone else to write it for them and were unable to review the contents - you can often contest the will even if it is executed properly.

Contesting a will on these grounds requires significant evidence in most cases, and legal support from a contentious probate solicitor is a must. There are other steps that grandchildren can take if the will is unclear, ambiguous, or was subject to a clerical error. Similarly, if you believe that the executor of the estate (the person who is managing the estate on behalf of the deceased) has failed to understand the testator's instructions, there are legal ways to rectify this that are different from challenging a will.

It is also important to understand the potential outcomes of a challenge. If you are successful and the will is declared invalid, it is overturned and ceases to apply. This may mean that an earlier will is used in its place, or that the estate is distributed according to the intestacy rules. As such, it is crucial to work with an experienced solicitor, who can evaluate your chances of success, advise you of the legal options available to you, and guide you through the whole process.