When a dependant of a deceased person is unexpectedly not provided for under the will, the normal course of action is to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.
However, the reason why the person was not provided for may also give cause for challenging the will.
In a recent case, a man who was excluded from benefiting from his father’s will, which was created three days before he died, brought a claim against the estate under the Act. The claim was settled by a consent order.
The man believed that his father’s will was invalid and claimed that his father lacked testamentary capacity (i.e. was not ‘of sound mind’) when the will was written, so he then went to court to have the will ruled invalid.
The executor of the will opposed his application on the basis that it would be inequitable and an abuse of process since the man had already obtained an agreed settlement. In effect, the argument was that the earlier consent order should stop him from having a second bite of the cherry.
On appeal, the court allowed the challenge to proceed: the payment to the son did not mean that he had accepted the validity of the will.
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