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Challenging a will on behalf of your grandchildren

08 May 2018 ( 08 May 2019 )

What are your options if you feel your grandchildren have been unfairly treated in a will? Solicitors David Bondt and Ian Johnston of JMW, look at contesting a will on your grandchildren's behalf

Grandmother and granddaughter looking out of a window
You can contest a will on your grandchild's behalf if there are grounds for making a case

Many parents, and grandparents, are comforted by knowing their family is provided for after they’re gone, so they put a lot of planning into securing a healthy financial future for their children. One of the most common ways of doing this is through a will, which enables a person to detail their wishes for how their financial estate should be distributed after they die.

Although a lot of people are proactive about making a will, there’s growing concern for people not updating them following significant life events, with the amount of wills being found to be invalid or contested rising rapidly. The number of these cases handled at solicitors JMW has more than trebled in the past year – increasing by 343% from 2015/16 to 2016/17 – and many have involved blended families.

The often complex structure of blended families allows for more opportunities for wills to be contested, as people sometimes feel they’re entitled to more than they have been left – or, more commonly – more than another person has been left. We regularly see these kinds of disputes among adult children of a deceased parent; however, more recently, we’ve identified a trend for grandparents to make claims on behalf of their grandchildren who are under 18.

Acting on behalf of your grandchild

Many people naively assume that the family member/s they leave their estate to will act in good faith and do the ‘right thing’ in fairly sharing inheritance among other family members or dependents – but this is not always the case. Not everyone can contest a will, only people who would be personally and financially affected by the will. If your grandchild is under the age of 18, you may wish to assist them in making a claim against the will of their deceased parent.

This can be a very emotional process, as dependent on the family dynamic, your grandchild may have a relationship with their deceased parent’s spouse or partner, and may not understand that if a claim is not brought on their behalf, they may not receive anything from their parent’s estate. Although it is rare, we have also handled cases when the grandchild has sought the help of their grandparents.

To make a claim on your grandchild’s behalf, you will have to become what is known as a ‘litigation friend’, and take responsibility for the claim until they turn 18. The most important thing to do in the first instance, is consult a legal professional. Even if you are unsure on whether you want to bring a claim on behalf of your grandchild, a good solicitor will discuss your unique situation, your concerns for your grandchild, and the appropriate actions that need to be taken.

Grounds for making a case

There are a range of different circumstances when you might want to contest a will on behalf of your grandchild, but no matter what those circumstances are, any claim will fall into one of these two categories:

A claim to challenge the validity of the will – if you believe something is fundamentally wrong with the will, for example you believe it is forged, the person writing it lacked capacity (perhaps due to a medical condition), they did not understand or approve the contents, or were manipulated into signing the will.

A claim for reasonable financial provision – if the will does not provide for a child, either adequately or at all, a claim can be made against the estate.

Intestacy rules

The varied range of family structures we have today mean there’s no stereotypical case for grandparents contesting wills on behalf of their grandchildren, but there are a number of things to be aware of, or that are common, with this kind of legal case.

If your grandchild’s parent dies without a will – known as ‘dying intestate’ – then intestacy rules determine who inherits the deceased’s assets. Another way intestacy rules apply is when a person remarries before death, which automatically nulls any previous will they had, which could have accounted for your grandchild.

What happens to debt when someone dies?

With no (or no up-to-date) will in place, intestacy rules state that the first £250,000 of the deceased’s estate will be inherited by their spouse. If the estate is greater than £250,000 they will also be entitled to half of anything above that amount, with the other half being inherited by your grandchild and any other direct descendants of the deceased. If the estate was less than £250,000, the deceased’s spouse would have the right to receive any property and assets in the deceased’s name and your grandchild would receive nothing.

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Time is of the essence

There are strict time limits within which you will need to take action if you decide (or are advised) to pursue a claim. The person making a claim, you on behalf of your grandchild, has only six months to issue court proceedings from the date the executor of the will or administrator of the estate obtains a grant of representation to the deceased’s estate.

Unlike with some legal cases, the deadline within which you must issue a claim at court is not delayed until your grandchild turns 18. If the six-month deadline is not met, an application to request court discretion for your grandchild to bring a claim will need to be submitted – which puts at risk your grandchild’s opportunity to make a claim, as this request may be denied.

It’s also good to be mindful that, if making a claim against an estate for reasonable financial provision, the court would have to consider and balance the current and future needs of your grandchild with those of the deceased’s spouse or partner, and any other children or beneficiaries included in the will. This will determine how much, if any, financial award is given to your grandchild.

Handling the situation

Will disputes are a very complex area of law, but talking frankly with your grandchildren will help them understand the effect that their parent’s remarriage, or new long-term relationship, may have on their inheritance. As a grandparent, you may even find yourself acting on behalf of your grandchild to defend their inheritance if their parent’s spouse or partner is contesting their parent’s will.

In some circumstances, your grandchild may not want you to bring a claim on their behalf, but you still have the ability to do so if you consider it to be in their best interest. Having some knowledge of these situations should help your grandchild understand the importance of taking legal advice in what will most likely be an emotional time for them after losing a parent.

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The opinions expressed are those of the author and are not held by Saga unless specifically stated. The material is for general information only and does not constitute investment, tax, legal, medical or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.