How can my Will be challenged if I'm not dead yet?

Posted by Helen Bunker on
It's no secret that Wills are frequently contested in the UK, after the testator has died. But did you know that there is a growing pre-death litigation movement making waves in the US – that's right, you read correctly – pre-death.

In the handful of US states where it is already permitted, the validity of a Will (or trust) can be contested before a testator dies, by virtue of a court process for notifying the named beneficiaries of the Will in addition to any disinherited heirs. Those notified have a set timeframe in which to respond or contest the Will and if not challenged during that time, he or she will be prohibited from bringing any future claim, even after the testator's death.

A major reason cited for pushing through these procedures is to ensure certainty of estate planning. But is 'certainty' all that's at stake?

In the UK, there is no question that a Will 'speaks on death' and that a testator should be able, if not encouraged, to update his or her Will throughout his or her lifetime, in tandem with major life events, such as: marriage, divorce, births, promotions, relocation or even a lottery win! A Will belongs to the testator until death and the confidential nature of the Will itself is of utmost importance.

That said, there are a number of grounds on which a UK Will can be contested, mainly through the Inheritance (Provision for Family and Dependents) Act 1975. The aim of the Act is to benefit those family members who have been omitted altogether or not adequately maintained, provided the strict timeframes are followed. There are separate provisions should there be any suggestion of fraud or undue influence, for example.

Although it is unlikely that pre-death litigation will reach our shores anytime soon, obtaining legal advice during one's lifetime can help prevent any future challenges to a Will.  

For further information please contact Elysa Jacobs or your usual Blake Morgan adviser. 

About the Author

Photograph of Helen Bunker

Helen is a Partner and specialises in Private Law based in our London office.

Helen Bunker
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