Contentious Probate

Contentious probate is the legal umbrella term covering any dispute over how a person’s estate is dealt with following their death. Contesting a Will and Will disputes fall under the contentious probate category, and specifically deal with dealing with a Will that the client believes:

• Is invalid
• Is forged or fraudulent
• Should not be recognised due to the individual’s mental capacity whilst they were creating it (e.g., if they had dementia)
• Should not be recognised due to evidence that the individual was coerced by someone else to write it a certain way

Our contentious probate solicitors offer legal expertise covering the full spectrum of contentious probate law, including contesting a Will, disputes amongst beneficiaries and fighting challenges against a Will you are an executor for.

Anyone can contest a Will; however, we advise getting legal advice before making a claim against an estate or defending it to ensure that you have a legitimate case or defence. 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.

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.

Who pays to contest a Will?

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 solicitor’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.

Contentious probate cases are one area where occasionally the usual cost rules that the loser pays the winner’s costs can be varied. Our specialist contentious probate solicitors are experts on advising when the rule may be avoided.

Who pays to defend a contested Will?

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.

Our contentious probate solicitors can help you make a claim against an executor of a Will if you believe they are not performing their duties correctly e.g., not distributing the funds to beneficiaries as instructed in the Will or taking ownership of the assets for themselves. We can also apply to the Court to have the executor removed from their role and for a new one to be appointed in their place. We can also advise you if you are the subject of any such challenge. Contact us on 01733 888 888 to speak to our team.

If you are making a claim under the Inheritance Act, then the time limit to bring a claim 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. We can advise you on these rules and have represented parties both seeking to extend time and to resist the grant of any such extension.

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 or defend against such a challenge on the following grounds:

CAPACITY

This is the most common basis of any challenge to a Will, based on a four-point test, now coupled with a cross check against the Mental Capacity Act 2005.

The testator (the person making the Will) must:

1. Understand that they are making the Will and know what it is 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 to whom they would usually be expected to leave their estate, 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 or defence being successful.

LACK OF TESTAMENTARY INTENTION

When is a Will not a Will?  Sometimes, particularly if the Will has not been prepared by a probate solicitor, there may be doubt as to whether the document was intended to operate as a Will. We can both help you challenge it successfully and also defend challenges to the validity of a Will.

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. We can act for you either to challenge or to defend a Will in such circumstances.

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 establish whether you have strong grounds to contest a Will for undue influence or to defend such a challenge to a Will, 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 for or 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 or defence.

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 valid or 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 or alternatively may provide good evidence that the testator had capacity.

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 and defend Will executors. They can bring and defend claims to have them removed if they are not performing their duties correctly.

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.

You can find out more about Inheritance Act Claims as well as information on how to pursue or defend a claim

In short, yes, but ideally if you intend to contest a Will or bring an Inheritance Act claim it is best not to undertake any duties as an executor and to renounce the role.

Take legal advice!  In most cases that advice will be that you should remain neutral and let the disputing parties settle their differences. If you do not you might find yourself liable for costs. Our specialist contentious probate solicitors can advise you.