Contesting when there is no will

If someone dies without a will, the intestacy rules will determine who inherits their estate. Whilst it is always important to check the rules in each case, generally speaking, the estate will pass to the deceased's spouse if they had one. If they didn't, it will pass to any living children.

Otherwise, it will pass to their parents, siblings, nieces and nephews.

Once it has been established who will inherit the estate, it can be determined who has the right to apply to be appointed as the estate's administrator (i.e., who can apply for a grant of letters of administration, commonly referred to as a grant). Usually, whoever inherits will also be entitled to apply for a grant, unless there is a reason they cannot act, such as being a child or incapacitated.

Can you apply for probate when there is no will?

If there is more than one person equally entitled to apply for a grant, and they cannot agree to either work together or which one of them should apply, it can result in a "race" to obtain the grant, or it can lead to one person lodging a caveat against the estate to prevent a grant being issued to anyone. Naturally, this can lead to a contentious probate dispute.

Can I create a will based on their known intentions?

Whilst it is not possible to create a will for someone after they have died, you can vary the terms on which their estate will pass. This can only be done if everyone affected agrees. For example, if someone dies and their estate passes to their spouse, but they wish for some of their inheritance to instead pass to their children, as long as everyone is in agreement, this is possible.

One of the main reasons people choose to vary the terms on which someone's estate will pass is that there is a more tax-advantageous way for their estate to be dealt with. As long as the variation is completed within two years of the person's death, the tax advantages will apply as though the deceased had made a will on those terms. You can still vary the terms on which their estate will pass more than two years after their death, but any tax advantages will not apply.

Another reason that the parties may agree to vary the terms of intestacy is if they do not consider them "fair". For example, if a couple were unmarried, the partner would not inherit. That couple's children, or whoever else inherits, may consider this unfair and be willing to agree that the partner receives a share of the estate. Rather than gift it to them (which may have personal tax implications), they can agree to vary the terms of intestacy.

It is important to note that the terms of a will can also be varied on the same basis. It is also important to note that whilst you cannot "write a will" for someone after they have died, it is possible to apply to the court for a statutory will to be prepared for someone whilst they are alive, but after they have lost capacity.

Can I contest the rules of intestacy?

It is possible for certain people to make a claim that they should receive a share of the estate, or a greater share than they receive under the intestacy rules. For example, where a couple is not married, and one of them dies without making a will, the surviving partner will not automatically inherit. If the estate passes to people who are not willing to vary the rules of intestacy, the partner may need to make a formal claim.

Whether someone is eligible to make a claim and what they would need to prove depend on their relationship with the deceased and their circumstances. For full details on who can claim and how the process works, visit our Inheritance Act claims page.

Can you contest an intestacy if the deceased used to have a will but they destroyed it?

It is possible that someone may have made a will, then destroyed it, so that they are deemed to have died intestate, but there are questions around whether the will was truly destroyed. This is an unusual scenario, but not unheard of.

We dealt with a matter where a child of the deceased alleged that their father's last known will did not apply as he had destroyed it whilst he was alive. Our clients alleged that the will was valid because their father lacked the capacity to destroy it. We argued that the same level of capacity is needed to destroy a will, as is needed to make one, because the act of destroying a will is an intentional means of changing how your estate will pass on your death. We had to obtain expert evidence to provide a retrospective capacity assessment.