Wills & Probate Disputes

What Are The Grounds To Contest A Will?

Certain factors will need to be proved if you feel a Will has been made in such a way that it is deemed invalid. One of the below will need to be proved.

Testamentary Capacity

It must be proved that the individual lacked mental capacity when the Will was created. They must have not been able to understand the full nature of what was going on and should have suffered a ‘disorder of the mind’.

Lack of Valid Execution

For a will to be testate, it must obey the following principles:

• The named person must be over the age of 18.
• The named person must have mental capacity.
• The Will must be made voluntarily and not under duress.
• The Will must be in writing and have the signature of two witnesses who do not stand to benefit under the Will.

If one or more of these principles has not been followed, the Will can be contested.

Lack of Knowledge and Approval

If the circumstances in which a Will was made are suspicious, you may be able to contest it. There is the ‘knowledge and approval’ test which must be satisfied to contest a Will:

1. Where there are sufficient facts to motivate suspicion of the court?
2. If the suspicion of court had been stirred, was this due to the actions of the person who put forth/presented the Will?

A Will is a very important document but anyone can prepare a Will regardless of whether they have been professionally trained. Witnesses do not need to know the testator personally, therefore they may not know the testator’s mental state. Consequently, suspicion can easily arise that the Will was not properly made.

Undue Influence

It must be proved that the person was unduly influenced, coerced or even under duress when making decisions for the Will. If you are looking to contest a Will for undue influence, the evidence must be very clear and it must be shown that there is no other reasonable explanation to show the outcome of the Will.

Fraudulent Wills and Forged Wills

A fraudulent or forged Will can sometimes be quite apparent, such as the forgery of a signature or in more complex cases a lie from the testator. If it is found that someone has made a false representation to the testator and this has influenced the contents of a Will, this can be deemed fraud.

Fraudulent and forged Wills can be difficult to prove, particularly if the testator has died. Whilst there are no time limits for contesting a Will, you should not make any delays to claim unless they cannot be avoided.

Rectification and Construction Claims

Section 20 of the Administration of Justice Act 1982 states “If a court is satisfied that a Will is so expressed that it fails to carry-out the testator’s intentions, in consequence of either a:

• Clerical error
• Or failure to understand his intentions.

It may be ordered that the will should be rectified so as to carry out his intentions”.

Rectification and construction claims occur when the decisions of the deceased in their Will could not have possibly been what they truly wanted.

When Should I Contest a Will?

Quite often, disappointed beneficiaries have difficulty contesting a Will. Contentious probate relates to the administration of a deceased’s person’s estate. This includes the following:

• Disputes over the value of assets
• Disputes over the interpretation of a Will
• Dealing with challenging executors
• Dealing with disputing beneficiaries.

If you feel you are dealing with one of the above issues, please contact our contentious probate department. Our solicitors will be able to advise if they feel you are in the position to make a claim.

Contesting a Will Is Harder After Probate Has Been Granted

Contesting a Will after probate has been granted can be difficult because the assets of an estate may have already been distributed, therefore retrieving your entitlement could be challenging. As soon as you feel you have the viable evidence to contest a Will, you should get in touch with a solicitor who will be able to advise you further.

There are very strict time limits for contesting a Will, but this is dependent on the nature of your claim and how long after the death you wish to contest the Will. If you are concerned about time limits, it is possible to have a Caveat placed on an estate. A Caveat stops probate from being granted whilst any dispute over the estate or Will occurs.

Inheritance Act 1975

If you have not inherited as a result of intestacy (there was no Will to execute), have been left out of the Will entirely or not been left as much as you required, the Inheritance Act 1975 is there to ensure that distribution of the deceased’s estate will benefit dependants if they make a viable claim.

If the estate can provide it, the claimant is entitled to any ‘reasonable financial provision’ they require, however the civil partner or spouse of the deceased will be entitled to more.

Who else may be entitled to make a claim?

• The deceased’s child, which can also mean fostered/adopted/step-child.
• A former partner who has not been remarried or entered into a civil partnership.
• If you have been ‘maintained’ by the deceased or lived with them for at least two years prior to death.

For more information, please contact our Private Client Department.

How long does it take to contest a Will?

This depends on a number of influences. If the other remaining beneficiaries agree with the amendments then the Will can simply be changed.

However, in some cases it can take months for all parties to cooperate, and if they choose not to do so, the case will need to be referred to Court. Some complicated cases can take up to two years.

If you are The Executor of a Will Someone Is Challenging, What to Do?

You should contact a solicitor for legal advice immediately. The contesting of a Will can have significant responsibility so it is wise to hire someone who is professional and knowledgeable as soon as possible.

You will need to find the value of all estate assets. This includes money, property and any other possessions the deceased owned. If a proportion of something was owned by the deceased with another person, you will need to find what proportion they own if beneficiaries are to be entitled to it.

Our solicitors will be able to assist with the valuation of assets, if required.