How to Contest a Will in Northern Ireland
Contesting a Will is the process of disputing someone’s last will and testament, often by presenting evidence about why it’s invalid.
If you think a Will made by a family member or friend does not properly reflect their final wishes or you have concerns about how a will was made, you may wish to challenge its validity.
You will need the help of a legal advisor to establish whether parts or all of the will, may be invalid and we can assist you. Solicitor Daniel McCracken offers expert guidance on Will disputes and succession rules in NI, and how to best navigate claims that might arise after a loved one passes away.
What is a Will contest?
A Will contest or dispute, in the law of property or assets, is an objection against the validity of a Will and whether the document is truly from the person who made it (known as the Testator). When there’s no dispute over the Will itself but there is a dispute over how the estate is going to be administered an Estate Administration Action arises.
What are the main rules of succession in Northern Ireland?
Succession refers to the orderly passage of power, assets or other property from the Will to others. The main principle around succession in Northern Ireland is to ensure that you’re free to make a Will, leaving whatever you have to whoever you want, with no one having an automatic right to an entitlement from your estate. This falls under the principle of testamentary freedom.
Are there any rules of forced heirship in Northern Ireland?
Unlike countries like France, Spain or Scotland, there are no forced heirship rules in Northern Ireland and you’re generally entitled to make a Will carrying out your own wishes. Although this does include some checks and balances, such as:
- You must make a Will which is compliant with statutory formalities;
- You must be mentally capable of making a Will;
- You must know and approve of the contents of the Will; and
- You must not be subjected to any undue pressure, influence or coercion.
If there is no Will who’s entitled to the assets?
If there’s no Will the estate is distributed as intestacy and there’s a set of statutory rules that dictate who’s entitled to the assets. Aside from a spouse or civil partner, the general rule is that the assets will be passed to the bloodline such as children, parents, siblings and beyond. Unlike other jurisdictions, the law in Northern Ireland will even allow distant relatives to claim estate assets unless there are closer relatives who have priority over them.
As there’s no provision under the rules for a common-law spouse or partner, it’s important to ensure you make a Will carrying your intentions.
How is the estate of an individual administered? Who is responsible for collecting assets, paying debts and distributing to beneficiaries?
The responsibility for the administration of the estate will fall to the Personal Representatives. This is split into two categories:
Executors: these are people appointed in the Will by the Testator. If those people are prepared to act as Executors then they will be responsible for valuing the estate, obtaining a Grant of Probate, collecting assets, paying debts (including tax) before carrying out your wishes in the Will and balancing those with the wishes of the beneficiaries (those who receive something from the Will).
Administrators: where there is no Will, there is a set of rules which dictates who is entitled to administer the estate. As a general rule, this will be your next of kin who are due to benefit from the main portion of the estate. The Administrator will obtain a Grant of Letters of Administration from the Court and will be responsible for administering the estate in accordance with the intestacy rules. They have the same obligations as an Executor except that the distribution is dictated by the intestacy rules rather than by a Will.
Being a Personal Representative is a trusting position as you owe a duty to the beneficiaries to avoid losses to the estate and to see that it’s administered in line with the Will and the law. If you incur avoidable losses or administer assets incorrectly, you risk exposing yourself to claims by the beneficiaries. For this reason, many Personal Representatives choose to work with a solicitor to avoid any errors.
In a case where there’s a dispute over the amount due to a beneficiary, how an asset should be administered, whether losses have been incurred or where the Personal Representative is unsuitable to act (e.g. has been previously guilty of a dishonesty offence such as fraud), then it’s always best to work with a solicitor for advice and representation.
What are the principal grounds for contesting a Will in Northern Ireland?
Contesting or disputing a Will usually happens when family, close friends or others connected to the Testator discover they are not inheriting assets they believed they would be. Sometimes there may have been a previous Will leaving assets to these people or, in the case of family, they would have been the people who would inherit if no Will had been made. Often there is a belief that the Will does not reflect the Testator’s true intentions and a claim is brought.
Bringing a claim against a Will can be based on a number of different grounds or factors:
- The Will does not conform with the statutory formalities for making a Will;
- The person making the Will was not mentally capable at the time of making the Will;
- The person making the Will did not know or approve of the contents of the Will as made;
- The person making the Will was subjected to undue influence (i.e. the person was coerced into making the Will);
- The Will was brought about by fraud; or
- The Will is a forgery.
If any of these grounds are present and proven then there may be cause for a Court to set aside the Will as invalid. This means the person’s previous Will will stand instead or, if the person did not have a previous Will, the estate could be distributed as an intestacy.
What if there aren’t any grounds to contest the Will but I had a close degree of relationship with the deceased and expected to inherit?
Sometimes people can refer to ‘contesting a Will’ when they really mean that they want to bring a claim against the deceased because the Will does not make proper provisions for them and they believe that it should have done so.
Under the Inheritance (Provision for Family and Dependents) Northern Ireland 1979 Act, there are certain people who can bring a claim against an estate where they haven’t been provided with ‘reasonable financial provision’. These are:
- The deceased’s spouse or civil partner;
- A former spouse or civil partner of the deceased;
- A cohabiting partner living with the deceased for the 2 years prior to the death;
- A child of the deceased (including adult children);
- Any person treated as a child of the marriage/civil partnership to which the deceased was a party (i.e. step-children);
- Any other person who was being maintained by the deceased immediately prior to the death.
These claims can be complex and the court essentially must carry out a balancing of the needs and resources of the beneficiaries under the Will, the deceased’s wishes and the needs and resources of the person bringing the claim.
A relative promised me an asset but their Will does not reflect that promise – is there a way of enforcing the promise?
The short answer is yes. There is a legal principle of estoppel which deals with situations where there are promises made which are then reneged on. When it comes to assets, and in particular land or property, the doctrine of proprietary estoppel can be used to enforce promises against a deceased person’s estate.
If each of these elements can be proven then the Court may grant a proprietary interest in the property or lands in question despite what the Will says:
- A clear promise was made by the person whose estate you are claiming against;
- You reasonably relied on that promise;
- Your reliance on the promise has caused you detriment; and
- It is unconscionable to allow the promisor to go back on their promise.
A typical example of this would be a case involving agricultural land promised to one family member who then gives up various opportunities to farmland or invests in the farm whilst deriving little to no benefit. The owner of the farm then passes away leaving the farm elsewhere or shared between multiple people rather than to the person farming the land as promised.
Is it possible to correct a Will after the person has died if there are errors?
Yes, there are some limited circumstances when a Will can be corrected or rectified. The Court has a statutory power to rectify a Will where the Will fails to carry out the Testator’s intentions as a result of either:
- (i) a clerical error or
- (ii) a failure to understand the instructions of the Testator.
Where the error is clear and the people affected by the error all agree, a Deed of Variation is often used to resolve the matter as it allows the estate to be redistributed in accordance with any agreed provisions in a tax-neutral way so long as formalities and time limits are met.
How long do I have to bring a claim and how long does it take if I bring a claim?
Time limits depend on the type of claim you intend to bring.
There are short time limits for claims under the Inheritance (Provision for Family and Dependents) (NI) Order 1979 or for correcting a Will. The time limit for both of those claims is six months from the Grant of Probate, which is the formal process where the Executors prove the Will and are authorised by the Court to deal with the deceased assets.
Whereas, time limits for claims of proprietary estoppel depend on the relevant circumstances and can vary. And technically there is no time limit for contesting the validity of a Will on the basis that if the Will turns out to be invalid then it is invalidated as if it never existed as a Will.
However, despite any time limits, it’s really important to act quickly if you find an issue with a Will. Although once the assets have left the estate it’s not impossible to retrieve them if they have been sold or disposed of it’s much harder to recover them, even if you have a good cause.
The length of a claim depends on whether the case has to go to court and the conduct of the other party as well. These types of claims are generally heard in the High Court which automatically involves a longer period of time to prepare the case. Whilst it’s impossible to say exactly how long a case will take and urgent issues can be fast-tracked, generally, a case progressing to court will take at least one to two years based on the court rules and listings.
Could a charity or other corporate body bring a claim against a Will?
Yes, if under a previous Will a charity or other corporate body was due to inherit and there is a dispute over the validity of the last Will, which no longer benefits them, then they would be able to bring a claim against the Will.
When contesting a Will or bringing a claim against an estate, what evidence or documents do I need to collect to assess my case?
Independent evidence in cases against the validity of a Will are crucial as the person who could usually give all the answers is the person who has died. When a person has made a Will with a solicitor it is important to ask the solicitor for details of the circumstances surrounding how the Will came to be. This is something we recommend to clients right at the outset of any instruction and is something we seek to obtain ourselves from the solicitor.
Other documents include medical notes and records, diary entries, and statements from potential witnesses (preferably independent such as neighbours or friends who witness events but do not stand to benefit at all).
Advice to those considering contesting a Will or thinking about bringing a claim against a Will
Many people come to us to contest a Will as they feel it doesn’t represent the wishes of a loved one who’s passed away. These can be very complex cases as grief undoubtedly plays a significant role in the tensions, and it can lead to disagreements as one party may be unhappy with what they are set to receive (or not receive) and the other believes that the Will is exactly as it should be.
Claims like this have to be finely balanced and it’s important not to rush headfirst into a contentious situation but if you have concerns and you need to safeguard assets, which otherwise might be disposed off whilst you pursue a claim, it’s always best to work with a professional who will help you to take a level-headed approach.
Get in Touch
Whether you’re organising your Will, contesting a Will or defending a Will Claim, Daniel and our specialist team of solicitors can help you.
Call us on 0800 840 9293 or make an enquiry via our Request a Callback form.