Browse our Contentious probate & disputed Wills Services
What Is Contentious Probate?
Contentious probate is a dispute relating to the distribution of a person’s estate after their death or a dispute arising in respect of the validity of a Will. When a person dies their estate is administered in accordance with their wishes in the Will. If the deceased does not have a Will and dies intestate, the Rules of Intestacy govern the distribution of the estate.
What Types of Disputes Could Arise?
A dispute could arise if:
- You have concerns as to how the Will was drafted i.e. the Will is not signed or witnessed correctly
- The deceased did not have capacity to make the Will
- The deceased was coerced into making the Will
- The deceased did not approve the contents of the Will
- You believe the Will is fraudulent or you have suspicions the Will was forged
- There is a later valid Will in existence
- You felt you were not left what you deserved or were promised
- You may have concerns as to how those appointed (known as Executors) are dealing with the administration of the estate. For example, they may be refusing to organise the estate, doing it wrongly, taking too much time or using the assets and money for their own purposes. You may therefore wish to replace an existing Executor who is failing to take up their duties or who is failing to deal with their duties adequately
Can I Contest A Will?
Under Probate Law Wills can only be contested by:
- Spouses i.e. a husband or wife
- Children of the deceased
- People mentioned in the Will or previous Will i.e. a beneficiary of the Will
You must also have valid legal grounds for contesting a Will such as one of those listed below. If a Will is declared invalid then any previous Will that was made will become applicable. If there is no previous Will then the estate will be distributed in line with the Rules of Intestacy.
On What Grounds Can I Contest A Will?
Under the Wills Act 1837 there are a number of grounds for contesting a Will:
- Lack of testamentary capacity - For example, if the deceased was suffering from dementia at the time the Will was written and didn’t understand the meaning of a Will
- Undue influence or coercion - This means arguing that the person making the Will has been forced into making a Will
- Lack of knowledge and approval – For the Will to be valid the person making the Will must know and approve the contents of any Will executed
- Rectification – If the Will fails to carry out the intentions of the person making the Will as a result of either a clerical error or a failure to understand the deceased’s intentions
- Forgery and fraud – A forged Will is one which is made without the deceased’s knowledge. A fraudulent Will is a Will with an altered signature, one not signed in the presence of both witnesses or one whereby someone has been tricked into signing a document not knowing it was a Will
How Long Do I Have To Contest A Will?
The time limits for contesting a Will vary and are dependent upon the grounds of which you are bringing a claim. It is therefore important that legal advice is sought immediately to ensure a claim is made in time. The following time limits are applicable:
- A Claim under the Inheritance Act – 6 months from the issue of the Grant of Probate or Grant of Letters of Administration
- A beneficiary making a claim against an estate - 12 years from the date of death
- Rectification – 6 months from the issue of the Grant of probate
- Fraud – No time limit
- Claims for breach of trust – 6 years
- Invalid Will – No time limit
You can contest a Will after Probate, however, there is a risk that the assets may have already been distributed. If a Grant of Probate has not yet been obtained then it is possible to lodge a caveat at your local Probate Registry. This will prevent the Grant from being issued and in turn, prevent any payments being made from out of the estate whilst the claim is being investigated. A caveat can remain in place for 6 months. After 6 months a caveat can either lapse or be renewed. In order to challenge a caveat a warning must be lodged at the Probate Registry. The warning is then served on the person who entered the caveat (the caveator). The caveator then has 14 days to enter an appearance. If an appearance is not entered the caveat will be removed. If an appearance is entered, the caveat will become permanent and cannot be removed unless:
- A summons is issued seeking an order for its removal, or
- A probate claim is issued at court
There can be significant costs implications in respect of the above and it is therefore essential you seek legal advice prior to entering a warning or appearance in respect of a caveat.
What Is A Valid Will?
Section 9 of the Wills Act 1837 states:
No Will shall be valid unless –
- It is in writing, and signed by the testator (person making the Will) or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the Will; and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness signs the Will; or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness)
There Is No Will – What Does This Mean?
The Court can make an award under the provisions of the Inheritance (Provision for Family and Dependents) Act 1975, in respect of financial provision for those who:
- Have not inherited as a result of there being no Will
- Feel that the deceased might have left them financial provision
- Feel that the deceased has left them insufficient financial provision
The Inheritance Act 1975 applies whether or not there is a Will in existence. There are time limits for bringing a claim under the Inheritance Act and you only have 6 months after the Grant of Representation has been issued to make a claim.
In order to make a claim for reasonable financial provision you must be one of the following:
- A spouse of the person who has passed away i.e. the wife, husband or civil partner of the deceased
- A former spouse of the person who has passed away and not remarried
- A partner who lived with the deceased for at least 2 years immediately before their death
- A child of the person who has passed away
- A person who was treated as a child of the family
- Someone who was supported financially by the person who has passed away
What Costs Are Associated With Pursuing A Contentious Probate Claim?
When considering whether or not you wish to pursue a contentious probate claim, you need to be aware that the costs of pursing a claim may outweigh the value of the claim itself. Parties to a claim often mistakenly believe that any costs incurred will be paid directly out of the estate. This is not always the case.
The majority of contentious probate claims follow the rule that the unsuccessful party pays the successful party’s costs.
When deciding upon the issue of costs, the court will take into consideration the conduct of the parties and any offers to settle. They have the overall discretion as to who to award, how much to award and when to award costs. They can also order the parties to bare their own costs. They are however, most likely to follow the rule above in that the unsuccessful party pays the successful party’s costs.
There are two exceptions to the rule. These are:
- Where the testator or main beneficiary is considered responsible for the litigation. In such a case costs will be ordered to be paid out of the estate.
- If the circumstances lead reasonably to an investigation in the matter, then the court will make no order as to costs.
You therefore need to keep in mind when bringing a claim, should your claim be unsuccessful then you may have to pay not only your own legal costs but the costs of the winning party also.
We appreciate that this will already be a difficult time for you without the added pressure of having to contract with a dispute. Should you be seeking advice on contesting a Will, bringing a claim against an estate or seeking advice on defending a claim we are here to help and have been guiding families through the legal process for over 160 years.
We have experience of advising and acting on behalf of many clients and will be able to help you no matter what the circumstances are. We will always seek to reach a solution outside of court. However, if court proceedings are necessary we have the expertise to get the best possible outcome for you.
These types of matters can often be very complex and are time sensitive. We are able to guide you through the legal process which could include but is not limited to:
- Entering a caveat at the Probate Court in order to protect your position
- Obtaining copies of the Will and any previous Wills
- Obtaining medical records and statements from witnesses
- Writing a Letter of Claim providing a summary of the facts upon which your claim is based
- Explaining the Letter of Response received in respect of a claim or putting forward a Letter of Response
- Requesting details of a Will from another firm of solicitors regarding the way in which the Will was prepared and executed also known as a Larke v Nugus request
