Page last updated at 23:10 GMT, Tuesday, 20 October 2009 00:10 UK

The difficulty of challenging a Will

Money Talk
By Edward Chivers
Buss Murton solicitors

Dr Christine Gill speaks to the media outside Leeds Crown Court after winning her legal challenge to her parent"s will
Dr Christine Gill outside Leeds Crown Court after winning her case

Last week Christine Gill successfully challenged her mother's Will which had left more than £2m to the RSPCA.

This court challenge is likely to result in an appeal by the animal charity.

But it is just the latest in a long line of high profile, and often bitter, disputes surrounding the estates of deceased family members.

Challenging a Will is an expensive undertaking, both in terms of time, money and emotional effort.

Accusations fly, families squabble, charities huff and puff, and someone has to pick up the tab.

Yet it does not seem to deter an increasing number of individuals from challenging the Wills of deceased family members.

It is difficult to pinpoint the exact reasons for such an increase, but the increased wealth generated by many ordinary people over the past two decades has been an obvious factor.

Other influences have been the sharp increases in house prices in the past decade or so, the current recession, and increasingly complex family structures, often with children from two or more marriages.

Not enough

Typically, there are three grounds for challenging a Will in England and Wales.

It is extremely difficult to succeed in such a claim

The first of these is under the Inheritance (Provision for Family and Dependants) Act 1975.

This is the only statutory means of arguing that not enough was set aside for you in the final Will.

In order to bring such a claim, a potential claimant must overcome two objective hurdles.

First, they must be eligible to bring a claim under the Act and, secondly, they must be able to show that, immediately prior to the death, they were dependent upon the deceased.

The most common scenario would be children and co-habiting couples.

The purpose behind the Act has been neatly summed up by Baroness Hale in the recent case of Macleod v Macleod [2009].

"It is contrary to public policy to cast onto the public purse an obligation which ought properly to be shouldered within the family," she said.

This piece of legislation should always be borne in mind by solicitors when drafting a Will for a client who wishes to exclude someone who may have a potential claim.

The courts' application of the law is that it should not be seen as a "scrounger's charter".

However an individual making a claim for support as a result of their own financial mismanagement will not attract the sympathy of the court.

Not in control

There are two other ways to challenge a Will.

Edward Chivers
Edward Chivers

One is by demonstrating undue influence - that there was an element of coercion.

The other is by showing a lack of testamentary capacity, in other words that the person did not understand what they were doing.

This might be because of mental or physical illness.

It is extremely difficult to succeed in such a claim, as I am sure Ms Gill would testify.

The star witness - the deceased - is dead, making it very hard for the claimant to prove their case.

Ms Gill had to bring expert evidence that suggested her mother suffered from agoraphobia and severe anxiety.

And she successfully demonstrated that her late father was, in the words of the judge, "domineering and bombastic… utilizing her anxiety and fear of his explosive character… to coerce her into making the will which she did".

'Dark forces'

In most scenarios proving your case would be extremely difficult, and Ms Gill's ordeal is not over yet.

They eventually succeeded, but at a cost of £900,000.

Although she has succeeded in getting the £2.3 million estate passed to her, the RSPCA has a statutory duty, as a registered charity, to protect and safeguard its funds, including legacies left via a Will.

They are, therefore, likely to appeal against this decision which would result in months of continued litigation, probably costing tens of thousands of pounds.

This money is most likely to come from the estate, but quite feasibly could end up coming from Ms Gill's own pocket, or the charitable funds of the RSPCA.

The infamous case of Kostic v Chaplin in 2007 highlights the costs of such an action.

It concerned a dispute over the capacity of the person making the Will who suffered from a serious mental illness and a delusional disorder.

Mr Kostic left his entire estate, worth some £8.2 million, to the Conservative Party.

He favoured them on the grounds that they were not part of an international conspiracy of "dark forces" against him.

The family, understandably none too happy about this, disputed the Will on the grounds of his mental capacity.

They eventually succeeded, but at a cost of £900,000.

Escalating costs

Demonstrating to the court that a testator - the person making the Will - lacked the necessary capacity is, in most cases, a difficult claim to make successfully.

Zoran Kostic
Zoran Kostic argued that his father's bequest to the Tories was "delusional"

Medical evidence will help to prove your case, but the basic assumption in law is that a person has the capacity to make decisions for themselves.

Potential claimants, and more particularly their legal advisors, need to be aware of the difficulties and costs associated with legal action against a Will.

They should be wary of the fact that, as with all litigation, once the wheels are set in motion they can be hard to stop, as costs escalate and the issue of proportionality comes into play.

Having said this, legitimate claimants should not be put off seeking some initial guidance from their legal advisor.

The opinions expressed are those of the author and are not held by the BBC unless specifically stated. The material is for general information only and does not constitute investment, tax, legal or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.

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