What is testamentary freedom?
In England and Wales, individuals have what is called ‘testamentary freedom’ whereby a testator (a person making a will) is free to dispose of their assets how they see fit providing they have the testamentary capacity to do so. However, testamentary freedom is not absolute and has been central to many disputes in recent years. The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) encroaches on the right to testamentary freedom, as the Act provides for specific classes of eligible applicants to bring a claim against an estate for financial provision. Wright Hassall has been instructed in both matters relating to the Act brought before the Supreme Court Ilott v Mitson [2017] and Hirachand v Hirachand.
What to do if you are left out of a will?
If you have been left out of a will or are a ‘disappointed beneficiary’ in that you have not received what you expected, you may be able to challenge it. It is important to distinguish this type of challenge from making a claim under the Act which would proceed on the basis that the will is valid.
We set out below some of the most common questions asked when someone wants to assess if contesting a will is worthwhile.
Q: Who can challenge a will?
A: The most common type of challenge to a will is lack of testamentary capacity which can be due to dementia, illness, delusions or some other inability to understand the effects of making a will. A will can also fail because the person making it did not know and/or approve of the content. Alternatively, a will can be challenged if it has not been signed and properly witnessed. In all these examples, the will can be challenged by anyone who reasonably expected to inherit from the deceased. Wills are normally challenged by those who would have benefited under a previous will or by those adversely affected by the Intestacy Rules. Obviously, it would make little sense for a will to be challenged by someone who would not benefit if it was overturned.
Point to Note:
A claim under the Inheritance (Provision for Family and Dependants) Act 1975 is not a challenge to the will. You would not allege that the will was not valid for any reason but simply that it failed to make financial provision for you. You can make a claim if you fall into one of the following categories:
- A spouse or civil partner (or a former spouse or civil partner) of the deceased.
- A cohabitee of the deceased.
- A child (or someone who was treated as a child of the family, usually a stepchild) of the deceased.
- A person who was financially dependent on, or being maintained by, the deceased.
Q: The will might not be valid and was drafted by a solicitor - what can I do?
A: If you have a copy of the will or know which solicitor or professional will drafter prepared the will, you can make a ‘Larke v Nugus’ request. The principle of a Larke v Nugus request stems from a dispute between a beneficiary and an executor, where the latter refused to give the former a copy of the deceased’s will. As a result of this case, a Larke v Nugus request can be made to a solicitor who drafted the will with the aim of avoiding disputes, preferably at an early stage. It’s worth noting that if you are in the unenviable (but not unusual) position of being both an executor and a disappointed beneficiary, you will still be entitled to a copy of the will file.
Q: What is a Larke v Nugus request?
A: A Larke v Nugus request is a formal request to the firm of solicitors who prepared the will to provide information about the preparation and execution of the will. By its very nature, this will include details about the instructions that led to its preparation. A solicitor (or will drafter) is not obliged to respond to a Larke v Nugus request, but it is rare they go unanswered. Practically speaking, the Larke v Nugus letter will seek to establish how the deceased was introduced to the solicitor; how the instructions were given (telephone, or a home visit for example); and whether the deceased was alone when instructions were given and/or when the will was executed. A copy of the will file is often provided to evidence the answers given but, strictly speaking, a response to a Larke v Nugus request does not require a copy file to be provided; merely a statement replying to the questions posed.
As with any area of law, let alone the niche area of contentious probate, there is always a danger associated with using standard documents. As such, each Larke v Nugus request will be tailored to the specific circumstances - it is certainly not a one-size-fits-all piece of work. For more information on who is entitled to see a will, please see our article ‘Do I have a legal right to see a will?’
Q: Who can make a Larke v Nugus request?
A: The request can be used where someone, investigating the circumstances of the will, is considering challenging its validity either on the grounds of lack of testamentary capacity, or establishing if appropriate arrangements were made to accommodate the particular needs of the testator when his / her instructions were being taken (for instance if they were partially sighted or if there was a language barrier). The Larke v Nugus request can be tailored to extract whatever information the enquirer is looking for based on the likely ground of contest.
It is important to note that where the partners/members of the will drafting firm are not also appointed as executors, as a matter of good practice and to comply with the Law Society’s Practice Note on Disputed Wills, they will first seek permission from the executors before responding to a Larke v Nugus request.
Q: How much does a Larke v Nugus request cost?
A: The Law Society’s Practice Note does not prohibit a firm charging for responding to a Larke v Nugus request, although the cost of doing so must be reasonable. What is considered reasonable will vary from firm to firm but is generally less than £750 plus VAT.
Q: Can I make a Larke v Nugus request in respect of a homemade will?
A: No, a formal Larke v Nugus request cannot be made in respect of a homemade will. However, information can still be gathered about the testator and the execution process from the witnesses to the will at the time it was made. Although they are not obliged to do so, they can provide what is known as an ‘Affidavit of Due Execution’ (of a will or codicil), assuming it had been correctly executed. If, in the process of enquiring about an Affidavit, it transpires the will was not executed correctly or there were concerns regarding the testator’s capacity, the appropriate next steps can then be considered.
Q: What can I do if I am concerned that the deceased did not know what they were doing when they made their will?
A: A testator must have what is known as testamentary capacity at the time of giving their will instructions.
The leading case on testamentary capacity is that of Banks v Goodfellow. The starting point in assessing if someone had the requisite capacity to make a will, is to obtain their medical records for the relevant period. The Access to Health Records Act 1990 provides certain individuals with a right of access to the health records of a deceased individual. These individuals include ‘any person who may have a claim arising out of the patient’s death’. As a disappointed beneficiary, you would be eligible to make such request.
Q: It is taking a long time to investigate the will; what if the executor applies for probate?
A: A caveat is a method by which you can stop a full grant of probate being issued from the Probate Registry if you are concerned that a) the last will may not be valid or b) the person applying for the grant is not the correct person to do so, for example, because a previous will should be proved. If a grant of probate is issued, it allows the executors to call in the assets and distribute them to the beneficiaries. The benefit of having a caveat in place is that allows time in which to make investigations, thus limiting the risk of the estate being distributed to the incorrect beneficiaries. It follows that once an estate has been distributed, it is extremely difficult to claw back the distributed assets and reinstate the estate. You can read more about caveats here but it is important to note, they should be used carefully as an adverse costs order can be made if a caveat is entered without proper grounds for doing so.
Q: Is there a time limit for contesting a will?
A: Technically there is no time limit to bring a claim if you are seeking to challenge the validity of a will. As mentioned above, once a grant of probate has been extracted it is more difficult to return the assets to the estate once distributed. However, there are certain exceptions whereby time limits are imposed.
On the contrary, if a claim for reasonable financial provision is brought under the Act, there is a time limit of 6 months from the date the grant of probate was extracted for a claim to be issued. You then have a further 4 months to serve the claim form. If you fall outside this timeframe for making a claim under the Act, you can apply to the Court for permission to bring a claim. You would need to highlight what steps you have taken thus far and why you are seeking permission.
Q: How much does it cost to contest a will?
A: Cost will vary from matter to matter depending on the ground for contest, the other parties involved, if they have legal representation and if it becomes necessary to go through the court process all the way to a final hearing i.e. trial. More detailed costs information and information about the types of funding agreements we are able to offer, are here.
In summary
It is often following the death of a testator that concerns surrounding the will and the will making process are brought to light. Although a testator has testamentary freedom, there are remedies available to disappointed beneficiaries, such as a claim under the Act, or a challenge to the validity of the will.
Our Contentious Probate team has considerable experience in advising on the merits of pursuing a claim under the Act or challenging a will’s validity and we would be delighted to discuss the options open to you.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
