Disputes involving wills and probate by their very nature tend to arise at a highly emotional time. At Coole Bevis LLP we understand this is sensitive, particularly if family relationships are involved, and aim to apply our expertise in this area of the law to help you achieve the best possible resolution, with the least possible trauma.
Changes in the structure of our society, including more extended families and an ageing population, are leading to more disputes over wills, estates and family trusts. This area of the law, sometimes known as contentious probate, is complex and significant expertise is required to resolve such disputes. Problems can also occur when a family member dies intestate (without having made a will) or their will bequeaths the estate to someone who is not a family member, or perhaps to an organisation such as a charity.
At Coole Bevis LLP our experience includes disputes or claims regarding:
- Validity of wills
- Administration of an estate, including removal of executors/trustees
- Construction & interpretation of wills
- Claims for reasonable financial provision from an estate
- Lifetime promises and gifts relating to property, money and other assets
- Professional negligence claims against will writers/solicitors
In many instances, it is important to seek specialist legal advice as soon as possible because strict time limits may apply. Any delay may prevent you getting the funds or property to which you might be entitled.
Whatever the problem, we will take a sensitive and practical approach aimed at providing clear advice as to how best to protect your interests.
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.
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:
- Where there are sufficient facts to motivate suspicion of the court?
- 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.
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.
Who Can Contest a Will?
As a general guide, under probate law a Will can only be contested by spouses, children or people who are mentioned in the Will or a previous Will. However the laws are complex and if you are unsure whether you would be able to contest a Will or need advice, please contact our Private Client team for more information.
If you are a family member, you may be able to restore a Will or ask the court to proclaim a Will as invalid. This would mean that the ‘Rules of Intestacy’ apply.
A spouse, whether they were estranged or still living together at the time the Will was written, may be able to make a claim on the estate of the deceased partner.
A Creditor To Whom The Estate Owes Money.
If you are a creditor and the deceased person owes you money, you may be able to claim.
A Person Named As A Beneficiary In An Earlier Will.
If you have been a beneficiary in a previous Will made by the deceased and are not a beneficiary in the most recent one, you might be able to make a claim.
Someone Who Relied On The Deceased For Financial Support Or Accommodation.
Even if you were not related to the deceased, it is possible you can make a claim on their estate. For example, if the deceased has funded for you financially in the past, you might be to claim on the grounds of reasonable provision.
This could also be the same for a person promised an item or bequest, either verbally or in writing but which was not detailed in the Will.
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.
Can I Contest a Will without a Lawyer?
A Will can be contested without a solicitor, however this is a very complicated and convoluted area of law – the likelihood of your claim being successful with a solicitor will be far greater than if you were to contest alone.
You should be ready to have the Will scrutinised and challenged if the case goes to court. Whilst it may save you money short-term with legal fees, losing a case will be costly and legal advice is imperative if you are unaware of the Law surrounding disputes.
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.
Contesting A Will On Behalf Of Someone Else
If someone is unable to contest a Will themselves, another person may be able to do it on their behalf. Generally, this action is taken by parents on the behalf of minors who have been left out of the Will of an absent parent.
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.
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