Disputed Wills

Court orders in Disputed Will cases

The Court has a wide discretion in relation to the orders that can be made in Disputed Will cases, and have the power to make any one or more of the following orders:—

(a) an order such periodical payments and for such term as they consider appropriate.  This may be appropriate in a case where there is a property that can generate a rental income which will be paid to a child of the deceased until such time as they secure their own employment;

(b) an order for payment of a lump sum, this could be appropriate if the applicant would be able to manage on their own if a debt was repaid and can be for any amount that the Court considers appropriate;

(c) an order for the transfer of any property comprised in that estate, for example if the family home was in the sole name of the deceased it may be transferred to the surviving spouse or civil partner, or could include the transfer of a vehicle to an applicant to provide them with independent transport;

(d) an order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified in the disputed will, for example to hold property on trust until a child reaches the age of 18 or marries;

(e) an order for the acquisition out of property comprised in that estate of such property as may be so specified and for the transfer of the property so acquired to the applicant or for the settlement thereof for his benefit.  This could be appropriate if there is a large property occupied by the surviving spouse and grown up children or step-children, and the Court feels that selling the former family home in order to buy smaller, independent properties would be more suitable;

(f) an order varying any ante-nuptial or post-nuptial settlement (including such a settlement made by will) to which the deceased was one of the parties, where the variation is for the benefit of the surviving party to that marriage, or any child of that marriage, or any person who was treated by the deceased as a child of the family in relation to that marriage.  This may be appropriate in a case where the settlement was made many years before the deceased passed away and circumstances have changed.

(g) an order varying any settlement made (i) during the subsistence of a civil partnership formed by the deceased, or (ii) in anticipation of the formation of a civil partnership by the deceased, where  the variation is for the benefit of the surviving civil partner, or any child of both the civil partners, or any person who was treated by the deceased as a child of the family in relation to that civil partnership.  This is similar to category (f) but applies where the parties were in a civil partnership rather than married.

(h) an order varying for the applicant's benefit in the trusts on which the deceased's estate is held (whether arising under the will, or the law relating to intestacy, or both).  An example of this would be where the deceased only left their surviving partner a life interest in the family home but the Court feels that they should have inherited it outright.

The Court also has the power to make interim awards in Disputed Will cases if an applicant is in immediate need of financial assistance, for example a child of the deceased who was expecting University course fees to be paid and they are now due or if mortgage arrears might accrue unless an interim payment was made.  The Court can also consider making an order in respect of any former property of the deceased which they accept was disposed of during the period of six years prior to death for the purposes of defeating an applicant’s claim under the Inheritance Act.  This could occur, for example, if the deceased wanted to make greater provision for their natural children rather than step children and therefore transferred a second home to their natural child before death in order to reduce the assets available under the estate.

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