Contentious Probate Solicitors London

There is no legal requirement to hire a solicitor to contest a Will, bring an Inheritance Act claim or to take the opposing party to Court. However, it is advisable that you do seek legal advice and have representation from an experienced solicitor, as they will understand the complexities of probate law and can prepare documents on your behalf that will increase the likelihood of the Courts accepting your case and can vastly improve your chances of winning. Contact our experienced contentious probate solicitors for a consultation and we will give you a forecast on the likelihood of your case being successful, in addition to a breakdown of our fees.

The cost to contest a Will depends on a variety of factors, such as the value of assets, complexity of wealth structure (e.g., if the deceased left multiple properties or owned properties abroad) and the amount of time passed since the grant of probate. To receive a tailored quote on our services based on your personal circumstances, contact our team today.

If you are making a claim under the Inheritance Act, then the time limit that a contentious probate solicitor can legally act on is six months from the grant of probate date. Therefore, it is essential that legal advice is sought as soon as possible to avoid being out of time. If this time limit has expired, then you still may be able to make an application under certain circumstances. However, permission to do so will be at the discretion of the Court.

If you are contesting a Will because of suspected lack of capacity, undue influence, or fraud, then there is no defined time limit for making a claim against the Will. However, if the estate of the deceased has already been distributed amongst beneficiaries, it can be exceedingly difficult to claim successfully. Executors will usually carry out estate division within 12 months, so seeking legal advice early from a contentious probate solicitor can help halt the process and make lodging a claim against the estate easier.

A deed of variation (where distribution of the estate differs from what was specified in the final Will) needs to be completed within two years following the date the deceased passed to be effective for tax purposes.

Our contentious probate solicitors can help you challenge the validity of a Will on the following grounds:

Lack of capacity

This is the most common basis of any challenge to a Will, based on a four-point test.

The testator (the person making the Will) must:

1.Understand that they are making the Will and know what it was for and its effect.

2.Have a reasonable understanding of the assets they are leaving – the degree of knowledge required varies depending on the facts of each case.

3.Be aware of who they would usually be expected to leave their estate to, e.g. spouse, children.

4.Show that they are not suffering from an illness or disease which meant they left assets to people who would not otherwise have benefited, had they not been suffering from that illness or disease.

A testator may suffer from illnesses, such as dementia, which could be used as a basis to challenge the validity of the Will. However, by itself, a diagnosis of dementia does not mean a Will is automatically invalid.  The test is whether, as a result of the illness, the testator fails one or more of the tests, as set out above.  There are plenty of cases where testators have been found to have been living with dementia but are still able to give satisfactory instructions for a valid Will.

This is a complex and expanding area, and challenges against Wills to prevent them being admitted to Probate are being brought and settled on this test every day. For more advice on your circumstances, please do not hesitate to get in touch with our contentious probate solicitors for a professional assessment to identify the likelihood of your claim being successful.

Lack of testamentary intention

When is a Will not a Will?  Sometimes, particularly if the Will has not been prepared by a contentious probate solicitor, there may be doubt as to whether the document was intended to operate as a Will, and you may be able to challenge it successfully.

In addition, the question may arise as to whether there was an intention to incorporate other documents which, if incorporated, will themselves form part of the Will.

There are also some Wills which only operate on a condition being satisfied.

A failure to follow correct procedure (Lack of due execution)

In almost all cases, certain requirements must be met for a Will to be valid. It must be:

1. In writing, signed by the testator or by some other person in the testator’s presence and by their direction;
2. It must appear that the testator intended, by their signature, to give effect to the Will;
3. The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator but not necessarily in the presence of any other witness.

If any of these elements are not present or there is doubt, then the Will can be challenged through the aid of a contentious probate solicitor. However, everything is to be presumed to have been done properly and, accordingly, the burden is on those attempting to challenge the Will.

Knowledge and approval

Anyone seeking to obtain a Grant of Probate is obliged to satisfy the Court that the Will put forward is the last Will of a free and capable testator.

Usually, if a testator had capacity and the Will was duly executed, a Court will assume the testator to have known and approved its contents. However, where knowledge and approval are disputed by those challenging the Will, the Court must be satisfied on the evidence that the testator did know and approve its contents. There may be a host of circumstances which throw doubt on whether a testator knew and approved their Will. One such example that our contentious probate solicitors frequently see in cases is if someone writes or prepares a Will under which they take a benefit. Such circumstances are more likely to arouse the Court’s suspicion that the testator did not know and approve the contents of the Will and that suspicion will have to be removed.

Fraud and forgery

These are two ways, often linked, of challenging a Will. Fraud involves dishonesty and is judged objectively on what a person knew at the time. For example, if a person knowingly appropriates another person’s property, they will be found dishonest and the challenge will be successful, even if they honestly see nothing wrong with such behaviour.

A dishonest misrepresentation made to the person making a Will (testator) is the most common form of probate fraud that our contentious probate solicitors deal with; influencing them to make or revoke a gift to someone, and this is sometimes referred to as fraudulent calumny. Another example is someone who the testator does not know preparing a Will in their own favour.

Challenging a Will through an allegation of forgery usually will require expert handwriting evidence and the standard of proof is high. If you suspect a loved one’s Will to be forged, then our contentious probate solicitors can help you identify the forgery through our links to highly established, professional handwriting experts. Call us today on 01733 888 888 to find out more.

Undue influence

Often, if there is evidence of undue influence then there will not be a need to prove it because lack of knowledge and approval will be easier to establish.

In probate cases, where you are challenging a Will, you must demonstrate actual undue influence.  Unlike in many other legal areas, undue influence is not presumed and the burden of proving undue influence is on the person alleging it. It is not enough to show that the facts are consistent with undue influence having been applied. Instead, it must be shown that the facts are inconsistent with any other explanation.

A testator can be led but not driven – their Will must be an expression of their wishes alone. Accordingly, it is very unusual to pursue a challenge to a Will based solely on undue influence.

If a Will is successfully challenged on any of these grounds, it will not be admitted to probate. If you wish to identify whether your case has strong grounds to contest for undue influence, we strongly recommend speaking to one of our contentious probate solicitors; who can offer their professional opinion on your situation that could potentially save you court costs later.

The chances of your claim against a Will being successful rely on several personal factors, such as the basis for your claim (See On what grounds can you contest a Will? ), your evidence, available witnesses, and (for Inheritance Act claims) the financial situation of both you and beneficiaries of the deceased individual’s estate.

To get a more accurate picture of the chances of your personal case being successful, speak to our contentious probate solicitors, who will listen to the details of your situation and assess if you have a legitimate claim.

The evidence needed to contest a Will depends on the grounds you are using to make a claim against the estate. Some of the most common evidence our contentious probate solicitors will advise using include:

Witness Statements

These can include people who were in regular contact with and knew the deceased well prior to their death, or those present at the signing of their Will e.g., solicitors. Witness statements are important if you are trying to prove that a Will is invalid due to a lack of legal formalities, undue influence or that it has been forged or fraudulent.

Medical Evidence

Medical notes and records are particularly important if you are contesting a Will for lack of testamentary capacity, as they can help support claims that the Will maker was not of sound mind when creating the final document.

ACTAPS is the Association of Contentious Trusts and Probate Specialists. Our contentious probate solicitors, Paul Branch and Alex Burch are full member of this specialist organisation which only admits solicitors who specialise in contesting Wills into membership after examination.

Our ACTAPS accreditation assures clients that not only do our contentious probate solicitors have recognised, high quality legal expertise within this area of the law but are also committed to a strict code of conduct that adheres ethical practices and high standards of service.

The executor of a Will is an individual named in a person’s Will who holds the responsibility of dealing with their estate following their death. An individual can choose anyone they know personally or a professional, for example a solicitor or accountant to be an executor. However most commonly they are a spouse, child, or other close family member.

The responsibilities of an executor include:

– Securing owned property of the deceased following their death

– Collecting all assets and money that make up the deceased person’s estate (including property)

– Ensuring that outstanding debts and taxes (including inheritance tax) is paid from the estate

– Distributing the estate as instructed by the person’s Will

– Sometimes the executor will be responsible for arranging the funeral of the deceased, but only if it is specified that they do so under the Will

The Will maker can appoint up to four people to be executors of their Will, so that the responsibilities are shared and decisions are made jointly. Most solicitors will recommend that Will makers appoint two executors just in case one dies or is unable to fulfil their duties for another reason. A person can also choose a solicitor to be an executor of a Will and, in cases where executors are removed due to claims of negligence, they will often be replaced by either the claimant’s acting solicitor or an independent solicitor.

Our contentious probate solicitors can challenge Will executors and even have them removed if they are not performing their duties correctly.

Contentious probate is the area of law that deals with disputes relating to a person’s Will, trust or estate following their death. It covers a wide range of Will-related disputes, from disagreements between beneficiaries and claims from individuals who feel they were unfairly left out of a Will, to litigation against executors who are deemed neglectful or to be abusing their position.

There are several reasons why someone may reach out to a contentious probate solicitor for assistance, with some of the more common reasons including:

– Being left out of a Will unfairly

– Disagreements between beneficiaries of a Will

– Not being financially provided for adequately under the final written Will

– A Will being invalid due to the deceased person’s capacity, failure to follow correct protocol or because they were coerced by someone else

– Believing that the Will of their loved one is fraudulent or has been forged

– Challenging an executor of a Will who is not fulfilling their duties correctly

If you believe any of these issues are impacting your loved one’s estate administration, then speak to our contentious probate solicitors today by calling 01733 888 888 or by filling out the form at the bottom of the page to arrange a call back from our team.

On what grounds can you contest a Will?

The Inheritance Act (more fully the Inheritance (Provision for Family and Dependents) Act) was passed in 1975 and permits certain individuals to claim financial provision from a deceased person’s estate.

Currently, a surviving spouse or civil partner is the only individual who does not have to show a maintenance need to receive financial provision from a deceased person’s estate, which allows them to enjoy the same quality of life that they enjoyed before the deceased passed away. If the individual wishes to leave their estate or parts of it to anyone else (e.g., their children, family members or friends) then it must be specified in a valid Will.

Should there be no Will in place, or you were left out of the Will despite being eligible for a share of inheritance (as specified under the Inheritance Act, see ‘Who can claim under the Inheritance Act’ for more details) then you can make an Inheritance Act claim to try to receive financial provision. For assistance in filling out an Inheritance Act claim, contact our contentious probate solicitors to arrange a consultation.

Our contentious probate solicitors can help you make an Inheritance Act claim if you are:

– A spouse or civil partner of the deceased

– A former spouse or civil partner of the deceased (if they have not remarried or entered a new civil partnership)

– A partner who was in a relationship with the deceased at least two years before they passed

– A child of the deceased

– Someone who was treated as a child of the deceased, whether that be through adoption, fostering, being a stepchild or a close grandchild

– Anyone who was receiving financial maintenance from the deceased before their passing.

Anyone can contest a Will; however, we advise getting legal advice before making a claim against an estate to ensure that you have a legitimate case. Speak to our contentious probate solicitors for an assessment on your personal circumstances.

If you are challenging a Will because the one in place does not leave you with reasonable financial provision, you will usually need to be someone who was financially dependent on the individual prior to the death e.g., a child, spouse, or partner.

This can depend on how the Will dispute is resolved. If the dispute is settled through negotiation such as mediation and the parties can come to an agreement, then they can decide amongst themselves how the contentious probate solictor’s fees are paid e.g. splitting the cost.

However, if an agreement cannot be reached amongst the parties and the case must go to Court, then usually a proportion of the legal fees are paid by the ‘losing’ party.

Our contentious probate solicitors will also advise you on insurance to cover the opposing sides legal fees should the Court not rule in your favour.

With contentious legal proceedings, the legal costs of both the claimant and the defendant are typically covered by the party who has ‘lost’ the case. Therefore, if the Court rules in your favour when you contest a Will, then the other party will pay most of your legal costs and vice versa.

If all parties can come to an agreement prior to a Court case – either privately or through a form of negotiation like mediation – then the contentious probate solicitor’s fees will usually be shared amongst the individuals involved.