Huw Worthington of Worthingtons Solicitors provides legal advice on the grounds on which a will may be challenged.
My husband died and left me nothing in his will, can I challenge this?
Yes, in certain situations the testamentary freedom and intentions of the deceased can be challenged under the Inheritance (Provision for Family and Dependants)(NI)(Order) 1979 where a potential beneficiary feels they have not been adequately provided for in a deceased’s will.
An action should usually be taken within six months following the death of the testator. This piece of legislation operates particularly well in protecting the spouse or civil partner of the deceased but children, dependants, cohabitants and others who were receiving a degree of maintenance from the deceased may also find a remedy under this authority.
One of the main factors that should be considered is whether the spouse or civil partner would receive the same as they would expect to receive if the marriage had ended in divorce or dissolution. Consequently, if a spouse receives nothing, they have a good chance of claiming under the family provision system.
However, there are also further issues to be considered such as the actual size of the estate, the financial needs of the claimant as well as any needs of other beneficiaries of the will and an assessment will be made based on these issues. It is also important to note that legal costs will be deducted from the deceased’s estate and it therefore may not be worth pursuing a costly legal action where the estate is quite small!
Children, siblings and other relations of the deceased are limited to making a claim where they were receiving maintenance or financial provision from the deceased and the court considers reasonable financial provision has not been made for them. Therefore, generally speaking children under the age of 18 are well protected under this system but claims from others may not be so successful.
It is important to seek legal advice at an early stage if you think you may have grounds to take such a claim.
Huw Worthington, Senior Partner of Worthingtons Solicitors Belfast, Bangor and Newtownards is the head of the Estates department and is happy to provide legal advice and assistance in all matters relating to drafting Wills and Administering estates, as well as in matters of contentious probate.
