How Long Does Someone Have to Challenge my Will?

>>How Long Does Someone Have to Challenge my Will?

We’re always keen to explain how important it is to make a Will. Everybody who is 18 or over should have one! But many people worry about the possibility that their Will might be challenged – the risk of their wishes being altered by someone else.

The most common basis for challenging a Will relies upon the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). This allows certain family members, and people who depended upon you in your lifetime, to claim ‘reasonable financial provision’ from your estate. It doesn’t matter whether you have named them as a beneficiary of your Will or not.

We have explored such claims in detail on this blog before. High-profile IPFDA cases, such as Ilott v Mitson, have also made national headlines.

In this article, we’ll look at the time limits applied to IPFDA claims. We’ll also look at a recent case where a widow sought permission to challenge her late husband’s Will 11 years after his death.

Time limits to Will challenges under the IPFDA

If you are worried about someone challenging your Will, it is worth bearing in mind that there are time limits on such claims.

The IPFDA specifies that claims must be brought within 6 months of the date when a grant of representation is given. A grant of representation is a general term which can include grants of probate (where there is a Will) or a grant of letters of representation. For more information on the differences of these, have a look at our ‘Estates and Probate’ factsheet.

Crucially though, the IPFDA allows a claim to be made beyond this deadline if the court gives permission. So does this mean that a court will just allow claims at any time?

How does a court decide whether a late claim may be brought?

There is no definitive answer to this. A court will consider the individual circumstances of each case, so factors which are decisive in one Will challenge may not be given as much weight in another. In general, however, the following questions will influence their decision on whether to grant permission or not:

  1. How far beyond the time limit has the case has been brought? A delay of a few months, after the 6-month deadline, is more likely to be justified than one of 6 years. The court will also look at the reasons and circumstances behind any delay.
  1. Have any objections been raised, or negotiations started, before the time limit ran out?
  1. Has the estate already been distributed at the time of the claim? A court is going to be more reluctant to alter a Will’s effects if the estate has already been divided in accordance with the Will’s provisions.
  1. If permission were to be refused, is there any other way in which the claimant could claim financial redress? For example, if a legal adviser failed to inform the claimant of a possible IPFDA claim, resulting in a missed opportunity, that legal adviser could be liable for professional negligence. Such a claim against the legal adviser may offer an alternative way for the claimant to recoup their loss.

Besides these questions it is also important to note that:

  • The burden is on the claimant to convince the court that their claim should be allowed to proceed. If they can’t establish this, then the court will not grant permission. Courts have been keen to point out that the time limit is a key provision of the IPFDA and not just a minor procedural rule. As such, the claimant will have to put forward a ‘substantial case’ as to why they should be allowed to claim beyond the deadline.
  • There is no restriction on the court’s discretion. If the court considers it just to grant permission, it doesn’t matter how much time has elapsed.

That’s the theory, but how might this all be applied to a real-life case?

The case of Sargeant v Sargeant [2018] EWHC 8 (Ch)

This case involved a farming family. Joe Sargeant was the last remaining member of a partnership which farmed land in Northamptonshire. Joe died in 2005 and was survived by his wife Audrey Mary Sargeant (called Mary) and their daughter Jane.

At the time of his death, the value of Joe’s estate was estimated at £3.2 million. However, following indications that planning permission for housing development might be granted over part of the land, this estimate had risen to £8 million.

Joe’s Will placed the majority of his estate into a discretionary trust with Mary and Jane named as the beneficiaries. Generally speaking, a discretionary trust is one where the trustees have freedom to decide which beneficiaries should receive the trust income and property. The trustees aren’t obliged to give anything to the beneficiaries – however they are still bound by the duties placed on all trustees – such as the duty to act in the best interests of the beneficiaries as a whole. For more information on discretionary trusts, see our ‘Discretionary Trusts’ factsheet. With Joe’s discretionary trust, the trustees were Mary, Jane, and Mr Thompson, the family’s solicitor.

Joe had also made two letters of wishes. A letter of wishes is often used to accompany a discretionary trust. They can help the trustees to understand how the person setting up the trust in their Will would like the trust property to be used. Joe’s letters indicated that he wanted Mary to have ‘all the benefit’ from his assets, if she wished, and to have final say on whether any assets or land were to be sold.

Jane took over the farming business after Joe’s death. Mary did not work for the business but it was agreed between the trustees that she should be paid a salary of £20,400 a year. After some time, however, Mary began to feel her salary was insufficient. Mary, Jane and Mr Thompson met several times to try to resolve the issue. However, the farm, although very wealthy in terms of land, did not have the cashflow to increase Mary’s salary significantly. Both Mary and Jane were opposed to selling any land, despite Mr Thompson’s advice.

In 2016, Mary challenged Joe’s Will – over 10 years after the grant of probate had been issued. She relied upon the IPFDA and on the basis that, as Joe’s spouse, she had not been given reasonable financial provision in his Will. Because the claim was beyond the 6-month time limit, the court had to decide whether to grant Mary permission to make the claim.

Mary argued that her delay was because she had assumed she was fully entitled to half of Joe’s assets. She said she had not understood the discretionary trust arrangement. Mary’s lawyer also noted that she had not been advised by any of her legal advisers, before 2016, that she could bring an IPFDA claim.

The court did not accept her arguments, however. From the facts, they considered that Mary had been present at several meetings with Joe when making his Will. He had made several previous Wills too, all of which involved the use of a discretionary trust. The court held that Mary had willingly accepted the trust arrangement as a way of saving tax.

Concerning the lack of IPFDA advice, the court accepted Mr Thompson’s explanation as to why he had not discussed it with Mary. He said he did not believe Mary had wanted to change the arrangements from the Will, just the amount of the salary she was getting from those arrangements.  The evidence showed Mr Thompson had advised Mary to seek separate advice on her financial position several times, as he had made it clear any advice he had been providing was to the trustees as a whole (i.e. Mary, Jane, and himself).

Accordingly, the court refused permission for Mary’s claim under the IPFDA.

What should I take from this?

There are two aspects to this case which may be helpful when thinking of your own situation:

  1. If you are worried about challenges to your Will, the presence of a time limit can provide some reassurance. As the Sargeant case shows, there must be good reasons to allow claims beyond that time. Also, 6 months is quite a restrictive time period in legal terms. To put it in perspective, other kinds of claim, such as most personal injury claims, allow up to 3 years in which to start proceedings. A further limiting factor is that IPFDA claims cannot normally be ‘inherited’ from possible Will claimants either. For more information on this point, have a look at our article on the topic.
  2. If you feel it necessary to make an IPFDA claim on someone’s estate, do it as soon as possible. As can be seen above, missing the 6-month time limit places many more obstacles in the way of bringing a successful claim.

A clear theme from the Sargeant case is: knowledge of the relevant facts. If you are found to be aware of the relevant arrangements, and do nothing about them within the time limit, it is fair to say a Will challenge beyond the deadline will be very difficult to justify. A possible caveat to this is point No. 4 above; you were not made aware of a possible IPFDA claim. However, if this is found to be the reason behind a delayed claim, a court is more likely to direct you to make a claim for professional negligence against the advisers who failed you, rather than against the estate.

At Roche Legal, we are reassuring experts who specialise in Wills, estate planning, and resolving Will disputes. Please contact us if you would like advice, or if you wish to discuss any of the issues raised in this article.

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Roche Legal | rochelegal.co.uk | info@rochelegal.co.uk

2018-02-13T12:18:17+00:00 January 10th, 2018|News|

About the Author:

Rachel Roche
Rachel is a fully qualified Solicitor known for her personable style and strives to ensure that all of her clients receive a tailored and efficient service.