Challenging a will: an interesting state of affairs

We never forget our mission: make it simple to make a good will.

But from time to time, we find ourselves up against the undeniable fact that the law is full of technicalities which do their best to defy simplification. And what follows is a case that made it all the way to the Court of Appeal, which proves our point rather nicely.

Just as a foretaste, one of the issues in the case is two not-very-different interpretations of the word ‘interest’. Neither of them has anything to do with what you pay on a loan.

So, here we go. Are you sitting comfortably? 

Background – the easy bit

A husband and wife were divorced. Part of the financial settlement was that if the wife were to inherit more than £100,000 when her mother died, then the husband would be entitled to half of the balance. The mother’s estate was, at the time of her death, in the region of £250,000.

Nice and clear so far. If the mother had made no will to the contrary, the (now ex-) husband would receive £75,000 – i.e. half of what was left after £100,000 was deducted from the total estate. 

But there was a valid will to the contrary. Or maybe there wasn’t. And that is where the problems arose. Because this will left exactly £100,000 to the daughter, and the remainder to the daughter’s children. So the ex-husband would receive nothing.

For one reason or another (we decline to suggest what reason that might be), he sought to challenge the validity of the will. We’re not, as you know, big fans of anyone dying without leaving a valid will. But in this case, it was definitely to the husband’s advantage for there not to be one.

Still with us? We hope so – because it gets more involved from this point on.

Taking an interest

In order to challenge a will, and force the executors to prove its validity, you have to show that you have a right to do so. Fair enough, we say. Not just any Thomas, Richard or Henry should be able to contest a will. And the law states that indeed they can’t - unless they have an ‘interest’ in it. 

Now, the wife (or possibly her legal team…) argued that the husband didn’t have an interest in the will, because he didn’t stand to inherit anything under it. The husband, on the other hand, argued that of course he had an interest, because of what was due to him if the wife received more than £100,000.

So, to follow the logical steps of his position, if the will was not valid, then the wife would receive £250,000, of which £75,000 would end up in his hands. 

This is where the difference between ‘interest’ and ‘interest’ comes in. Try a little bit of the judgment from the lower court:

“The court is concerned with identifying an interest in the estate and not whether someone is 'interested' in the estate. Just as a creditor of an estate, while interested in the estate, has no interest in the estate, so in my judgment a creditor of a beneficiary of the estate has no interest in the estate, though he is possibly interested in the estate.”

Oh crumbs. This is the sort of thing that lawyers lap up, and indeed we do find it quite, er, fascinating. From a theoretical point of view. But it’s something of a distraction from the real question. As one of the judges in the Court of Appeal pointed out (our paraphrase), if the husband was unable to challenge the validity of the will (because instead of having an interest, he was only interested) and the will was in fact invalid, then the wife would be taking advantage of that invalidity to defeat the husband’s entitlement.

Or in other words – our heavy paraphrase – the will might be invalid, but even if it were he wouldn’t be allowed to challenge it, so it would stand and he would lose out.

Who won? (Spoiler alert)

So the Court of Appeal decided that the husband’s interest – in ensuring that a particular beneficiary received her correct inheritance so that he could receive his due – was enough to entitle him to challenge the will. Moreover, in a victory for common sense, they decided that ‘justice in a general sense’ required that he be allowed to do so.

Not that that concludes the matter. Oh no. This was only the case to decide whether he could challenge the will. For the outcome of the actual challenge, we have to wait a while yet.

If we haven’t all lost interest by then.

You can read more about disinheriting people in your will on our page Can you disinherit family and dependants?