A loved one dying can be a traumatic and difficult time. But disappointment and even resentment may replace sadness if those close to the deceased have not been provided for in their will.
Collas Crill's David Jeffery anticipates that, with the new inheritance law in force (as of 2 April 2012), the Guernsey courts will see wills being challenged. Here, he explains the options available to contest a will but warns that making a challenge is not without risk.
The Inheritance (Guernsey) Law , 2011
Until now, anyone living in the Island with a spouse and/or children, has been forced to leave at least part of their property to them. With the law now in force, a person making a will can leave their property to whoever they want.
There now exists two primary grounds for challenging a will. The first is a claim under the law itself, which abolishes forced heirship but provides for certain people to bring a claim alleging that the will does not make reasonable financial provision for them. Those eligible are the deceased's:
- spouse or civil partner, or former spouse or civil partner (if not re-married or in a new civil partnership)
- co-habitee (living together as if married for at least 2 years before the death)
- children, or step-children who the deceased treated as a child of the family
- anyone else who, immediately before their death, was financially maintained by them.
"Dependency claims" like these have generated some important decisions from the English courts, which are likely to be highly persuasive when our courts are asked to consider the inevitable influx of claims made locally.
The second ground for challenging a will is to claim that the will is invalid, for example because:
- the deceased did not know or approve the content (particularly if s/he had been seriously ill at the time it was signed)
- they lacked the necessary mental capacity
- there was some procedural or administrative error, e.g. lack of signature or lack of a witness.
- that the deceased was coerced and influenced into making the will. (It should be noted that claims alleging undue influence are notoriously difficult to prove and are seldom successful.)
In considering whether to challenge the validity of a will, you should give careful thought to what will happen if the court case is a success. If a will is declared invalid, the terms of an earlier will might be considered or the laws of intestacy could apply. If this means that you would be worse off, there would be little merit in going ahead.
If any of the above applies to you, contact a lawyer who specialises in this area of law at an early stage. Ploughing head first into litigation, without understanding the merits and costs implications of a claim, can have dire consequences. Consider, too, the likely impact a legal challenge will have on relationships within your family.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.