contesting/defending a will

[Bequia]

My Aunt remarried 15 years ago. She recently passed away. Her Will left specific instructions that although she was aware of the Inheritance act of 1975 she did not want her husband to benefit from her Estate. Although she did leave provision for him to live rent free in the property she purchased with her own funds and was registered in her name only. He also has her pension although it is fairly small. Can he contest the will, would he stand a chance of being successful?

[Buenchico]

From reading through the Act, it seems clear that your aunt's husband has an automatic right to apply to the court for an order varying the distribution of her estate in his favour. (See Section 1 of the Act).

For the matters that the court may consider, when dealing with his application, see Section 3. (Reading through those might give you an indication of the likelihood of such an application being successful):
http://www.statutelaw.gov.uk/content.aspx?LegT ype=All+Legislation&title=inheritance&searchEn acted=0&extentMatchOnly=0&confersPower=0&blank etAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1 &NavFrom=0&parentActiveTextDocId=1239280&Activ eTextDocId=1239280&filesize=109048

Chris

[dzug]

Not sure he can 'contest' the will as such. - it sounds perfectly valid as far as it goes.

IF he was financially dependent on your aunt then he can apply to the court for 'reasonable provision' from the estate with a good chance of success. However the rent free accommodation (for life?) might be held to be that 'reasonable provision'.

Not sure if the pension is relevant or not. Do you mean a widower's pension? If so that's nothing to do with her estate.

[Bequia]

Thanks. I meant her employers pension. He is trying to get the Executors and Beneficiaries to pay him a cash sum within the six months probate period which expires early May. Threatening that if we do not agree he will contest through the courts.

[Barmaid]

What Buenchico and dzug are saying is essentially the same thing. To be completely pedantic, he cannot contest the will. However the husband (whom I assume to be the widower) will be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. As well as the s3 criteria pointed out by Chris, the age of the applicant, the duration of the marriage (and anything over 5 years is accepted by the courts as extremely persuasive), and the contribution he made to the home generally are factors taken into account by the courts. Another test is the deemed divorce test - ie what he would have received had the marriage ended on divorce rather than death.

Authority suggests (cases such as White v White etc which although are strictly divorce cases) that the starting point is equality of division of assets, but that is only a starting point because a spouse is entitled to "reasonable financial provision whether or not required for his or her maintenance" - which is the higher standard, so further factors are the lifestyle the deceased and the claimant had together. The deemed divorce test is difficult to apply because in divorce the courts have to provide for both parties but in death, they only have to provide for one.

It is absolutely impossible to comment on the likelihood of his success without seeing full financial information and the witness statements. Unfortunately, the specific instructions left by your aunt are generally seen as self serving statements by the courts and as a way of justifying leaving less than is reasonable provision. Unless there is an "in terrorem" clause (which attempts to prevent a legatee under a will claiming on an estate) these are just another factor taken into account. In any event, in terrorem clauses are fraught with difficulty. The executors and beneficiaries should take immediate specialist advice.

[Bequia]

Your answers have been most helpful. Thanks for your time.