Call us: Mon - Fri 8:30am - 7pm, Sat - Sun 9am - 5pm
Call local rate 0330 056 3171
Mon - Fri 8:30am - 7pm | Sat - Sun 9am - 5pm
Call local rate 0330 056 3171
Mon - Fri 8:30am - 7pm | Sat - Sun 9am - 5pm

Husband allowed to contest validity of mother-in-law’s will

Inheritances are often an issue in financial settlements following divorce. If the inheritance has already been received, the question is reasonably clear: should the other party be entitled to a share of the inheritance? However, if the inheritance is a prospective one that has not yet been received, things are rather more complicated: we don’t know how much will be received, when it will be received, or even whether it will be received, as a testator is, of course, free to change their will at any time. This was the situation in the Court of Appeal decision in Randall v Randall.

Now, before I proceed I should say that I’m going to be a little economical with the legal niceties of this case, as it slightly beyond my expertise, being a probate, rather than a family, matter. In any event, I think only the basics of the decision are of interest from a family law perspective.

In the case the parties reached an agreement as to the financial/property settlement following their divorce, in May 2006. As part of the settlement they agreed that if the wife were to inherit more than £100,000 from her mother’s estate, she would keep the £100,000 and the balance would be divided equally between the husband and herself.

At this point the wife’s mother was still alive. Unfortunately, the judgment of the Court of Appeal contains little detail of what happened next. We know that a will was purported to have been made by the mother-in-law, presumably at some point after the settlement was reached, although we are not told the circumstances in which the will was made. We also know that the mother-in-law passed away, although we are not told when. What we do know is that in her will the mother-in-law left £100,000 to the wife and, after some small specific legacies, the balance of her estate, which was estimated at £150,000, was left to the wife’s children.

The husband brought a probate claim to challenge the validity of the will, alleging that it was invalid, as it had not been properly executed. If this was true, then he would be entitled to about £75,000 from the estate. To put it the other way, if the will was invalid then the wife and her children would be taking advantage of an invalid will so as to defeat the husband’s entitlement to half of the balance of £150,000.

Initially, the husband’s probate claim was refused, on the basis that he had no sufficient interest in the will, and therefore no standing to bring the claim. The husband appealed against this decision, to the Court of Appeal.

The wife’s case was that the only people entitled to challenge the will were those who had the right to administer the estate, and that the only persons entitled to administer an estate are those named as executors in the will, those entitled to share in the estate on distribution and the creditors of the deceased. The husband was none of these – he was a ‘stranger to the estate’ and therefore had no sufficient interest in it to give him standing to bring the probate claim.

The Court of Appeal disagreed. Giving the leading judgment the Master of the Rolls Lord Dyson pointed out that the probate claim was the only way in which the husband could challenge the validity of the will. He said that “justice in the general sense” required the husband to be able to bring his probate claim to set aside the will, and concluded:

“…if this claim did not fall within the probate jurisdiction but fell within the general jurisdiction of the court, it is obvious that [the husband] would have a sufficient interest in the subject-matter of this litigation to bring the claim. He is not a mere busybody. He has a real interest in challenging the validity of the will. In the absence of authority which requires us to hold otherwise, I conclude that he has a sufficient “interest” in the will to bring this claim.”

Giving a concurring judgment, Lord Justice McCombe made the telling point:

“…it appears to me to be highly unjust that if, in circumstances similar to the present… the party affected could not challenge the validity of the will in probate proceedings.”

Lady Justice King also concurred with Lord Dyson. The husband’s appeal was therefore allowed.

The full judgment can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

Contact us

As the UK's largest family law firm we understand that every case is personal.

Leave a comment

Help & advice categories


Newsletter Sign Up

Sign up for advice on divorce and relationships from our lawyers, divorce coaches and relationship experts.

What type of information are you looking for?

Privacy Policy