According to a survey conducted by Canada Life, over half of UK adults don’t have a Will. This essential document leaves instructions for what will happen to their assets, finances and other possessions upon their death.
Whilst a will provides peace of mind that one’s wishes will be upheld after one’s death, disputes are sometimes possible, both with or without a valid will being in place.
With an increasing number of people challenging the contents of a Will, it is essential to understand the process associated with doing so, commonly known as “contentious probate”.
This article highlights the answers to some frequently asked questions regarding contesting a Will and the subject of “contentious probate”.
What are the most common reasons for disputing a Will?
A Will may be challenged for various reasons, and whilst there are a few common scenarios, it should be pointed out that not everyone is in a position to dispute a Will. Some of the most common reasons for probate disputes include:-
- Someone not having been included in a Will.
- Who should be in charge of administering the estate.
- An argument over the entitlement to certain items, such as jewellery.
- A dispute regarding the identity of a beneficiary under a Will.
- A dispute regarding a discretion in the Will to advance money to a child.
When can the validity of a Will be challenged?
Opting to contest a Will should not be a decision that is taken lightly. The cost of disputing a Will has to be weighed against your determination to argue a point of principle or to retain an item of sentimental value. Nevertheless, if you are concerned about the contents of a person’s Will, how the Will was created or how that person’s estate is going to be distributed, you will need to consider under which ground you might contest the Will, for example:-
- Lack of testamentary capacity – Did the person making the Will have testamentary capacity, i.e. the appropriate mental ability to create and sign their Will?
- Lack of valid execution – Did the person making the Will follow the proper legal formalities regarding the signing of their Will?
- Undue influence – Was the person making the Will pressured or manipulated into making or changing their Will or was false information provided about an intended beneficiary leading to that person being cut out of the Will?
- Fraud or forgery – could the Will have been written falsely, e.g. by someone else, perhaps after the person had died so that their signature was forged?
- Rectification – if there is reason to believe that a mistake was made during the drafting of the Will.
Read about contesting the validity of a Will here.
Can I claim under the Inheritance Act?
The Inheritance (Provision for Family and Dependants) Act 1975 s a UK law that allows a Will to be disputed based on the fact that it fails adequately to provide for certain categories of people (eligible claimants) who may include one the following:-
- A spouse of the deceased.
- A former spouse of the deceased where they have not remarried.
- A partner who lived with the deceased for at least two years immediately before their death.
- A child of the deceased.
- A person who was treated like a child by the deceased and the family of the deceased.
- Someone who was financially supported by the deceased.
In this circumstance, people applying to dispute the Will must demonstrate that the provision made was unreasonable. This includes if there was no provision made. A court will decide what is ‘reasonably necessary’ based on various complex factors.
Under the Inheritance Act, claims must be issued in court within six months of the date of the Grant of Probate or Letters of Administration. Find out about contesting a Will after probate here.
What is a Proprietary Estoppel claim?
Proprietary estoppel is where the testator (the person making the Will) made an assurance or promise to someone during their lifetime that they would receive the estate or part of the estate when they died and the person to whom the promise or assurance was made relied on that promise or assurance but thereafter suffered some detriment or disadvantage as a result of not receiving the promised gift in the testator’s final Will. This is another possible route to challenging a Will. However, this sort of claim can be very difficult to prove.
Do I have to go to court?
Whether you will have to attend court for your contentious probate matter will depend upon a case by case basis. When you work with an experienced and professional solicitor to assist you in disputing a Will, they will do all that they can to resolve the matter without going to court. Some cases may be resolved through correspondence or meetings or there may be alternative dispute resolution (ADR) mechanisms that can be utilised.
ADR is generally cheaper and faster than resolving a matter in court. It will also likely reduce conflict during an already emotional time. However, as with many legal issues, it is not always possible to resolve a contentious probate case outside of court so when the need arises, our lawyers are able to support clients in court as well.
Wills and Probate Solicitors South East London
At Beverley Morris & Co., we understand how difficult it can be to decide whether or not to claim against someone’s Will, particularly if it is after the death of a loved one. Our specialist private client team is experienced in helping clients make or defend a dispute against a Will.
We will support you throughout your matter, from identifying the grounds on which to contest a Will to advising you through ADR or court proceedings including assisting you with all of the legal paperwork and proceedings.
To speak to a member of our team today, please call 020 8852 4433 or email enquiries@beverleymorris.co.uk.