Challenging Wills & Inheritance Claims
‘Contentious Probate’ disputes are on the rise. However, what exactly does contentious probate mean and what scenarios does it cover? I often get asked a number of common queries which I set out below.
What Is Contentious Probate?
The term generally covers any disagreement after someone has passed away about how their estate should be distributed. There are particular rules which must be adhered to when investigating the merits of, or pursuing these types of claim.
- What happens if I have been left out of a will, or receive substantially less than expected?
You may have grounds to challenge the will. If the most recent will is successfully overturned, the fall back position is to the last valid will if there is one. If not, the Intestacy Rules would be applied.
- What are the Intestacy Rules?
If someone dies without having a valid will, their estate is distributed to family members in a certain order and in accordance with rules set down by law.
- If you wish to challenge a will, on what grounds can you challenge it?
- Invalid Execution - the will should be signed by the testator, in the presence of two witnesses, who also sign to confirm they have witnessed the testator signing the will. If these requirements are not met, the validity of the will may be open to challenge.
- Lack of testamentary capacity- if the testator was suffering from a condition or injury at the time of the will being prepared and/or executed, which raises a concern as to whether the testator understood what he was doing. Examples would include dementia or a brain injury. This is becoming a more frequently relied upon ground due to the ageing population. Although, you should be aware that the presence of a particular condition or injury does not automatically mean that the testator lacks capacity, as the will may have been prepared and executed during periods of lucidity.
- Want of Knowledge and Approval- a testator must have knowledge and approval of the contents of their will. If someone who is set to benefit substantially from the will is also involved in its execution, this tends to ‘excite the suspicion of the court’ and may warrant challenge. However, the individual circumstances have to be considered very carefully.
- Undue Influence- if someone has been forced or coerced into making a will by another, who then sets to substantially benefit, then there may be grounds to set aside the will. However, this tends to be a very high threshold.
- Fraud- if a will has been forged or otherwise made in a fraudulent manner, then it is possible to overturn it. However, again an allegation of fraud is very serious and one which will need strong evidence to prove.
- What happens if a will does not make sufficient provision for me?
Provided there is a valid will, a testator can leave their estate to whomever they choose. However, certain categories of people can claim under the Inheritance Act 1975 (Provision for Family and Dependants) if they consider a will has not made reasonable financial provision for them.
- Who can claim?
A claim must be brought within 6 months of issue of a grant of probate. Only certain people can claim including spouses and civil partners (and ex-spouses and civil partners), children and those who can prove they were dependent on and have been ‘maintained’ by the deceased.
- What factors are relevant?
The court looks at a range of factors, including the financial needs of those making a claim, those who benefit under the will and the size of the estate.
If you consider that you have a possible claim in relation to a will, or someone is challenging a will and claiming against an estate you are dealing with, then please do not hesitate to contact me to discuss.