Challenging a Will...

What happens if, after having lived together, your partner dies, leaving a Will that provides you with little or nothing from their estate?  Can you challenge a valid Will?  Or can you bring any claims if your partner dies without leaving any Will at all, meaning their estate passes to their next of kin which will not be you if you are not legally married. 

The good news is yes you can.  Provided you and you partner have been living together for at least the last two years, you can make a claim for “reasonable financial provision” from their estate.  You cannot simply claim because you feel the Will is unfair or not as you expected. Typically for your claim to be successful, you need to show that you have been financially dependent and you had a reasonable expectation of having your living costs met by your late partner. If you were financially independent of them before their death, it will be difficult to show that you have such a reasonable expectation but it is not impossible. 

When reaching a decision, the court will take into account all the circumstances of the case including your financial resources and needs, the financial resources and needs of any beneficiaries of the estate, obligations and responsibilities your late partner had towards you or any of the beneficiaries as well as the size of the estate, your age and health and how long you and your partner had been living together. The court’s aim is to balance the interests of all those affected and its discretion is wide and extremely fact specific. 

This means some very unusual cases make their way to the courts. Take Mr Warner’s case.  He had lived with his partner in her house for the past 20 years.  On her death, her estate was inherited by her daughter.  The daughter wanted to sell the house for maximum value so she wanted Mr Warner out.  Mr Warner, who was in his 90s and in poor health, was in fact wealthier than his late partner, had sufficient financial resources to provide for himself and had had no expectation of inheriting anything.  However, he did want the option of buying the house as he wished to remain in his home with happy memories and supportive neighbours in the village he had been born in and lived in his whole life.  He was prepared to pay full value to the daughter for the privilege, but he ended up having to make a claim for reasonable financial provision.  These rather exceptional facts led the Court of Appeal to agree that forcing Mr Warner to move should be avoided if at all possible, found that his late partner had not reasonably financially provided for him (by keeping the exact same roof over his head) and they agreed that he should have an option to buy the property from the daughter.  

So Mr Warner succeeded in his claim, but he had to go through three separate rounds of litigation and incur substantial amount of legal costs, all of which could have been avoided if his partner had changed her Will to benefit him in the first place.

Successfully challenging a Will is not straightforward. At Mills & Reeve we have specialist lawyers who can advise you on inheritance disputes as well as lawyers who can assist you on inheritance and wealth planning to avoid getting into a dispute in the first place.  

Kris Arpon