It is estimated that fewer than half of adults in the UK have drawn up a Will, leaving formal instructions for what should happen to their positions on their death. However, even when a valid Will is in place, disputes are commonplace and over the last few years, many more people are challenging the contents of a Will.
When this happens, the legal process in dealing with these disputes is typically known as ‘contentious probate’. This article highlights a few frequently asked questions regarding contentious probate and contesting a Will.
What are the most common Will dispute reasons?
There are several reasons why Wills are challenged, or a probate dispute arises. Some of the most common disputes are due to the following:
- Disputes regarding the value of assets
- Executor Disputes
- Disputes regarding the beneficiaries of a Will
- Disputes regarding Trusts
- The interpretation of a Will
When can you challenge the validity of a Will?
The grounds for contesting a Will must include a valid legal reason, but it is not a decision to be taken lightly. However, if you have concerns about the contents of a will or how an estate is being distributed, the common reasons you can challenge a Will include:
- Lack of testamentary capacity– where the person did not have the mental or legal ability at the time of executing the Will.
- Lack of valid execution – where a Will is drawn up without the proper legal requirements or formalities.
- Lack of knowledge and approval – if the person making the Will was not aware of its contents
- Undue influence – where someone is manipulated or pressured to write a Will or change the contents of an existing one
- Fraud or forgery – if someone fakes a Will in someone’s name, forges their signature or uses false information about another beneficiary to make the testator cut them out of the Will
- Rectification – if you believe there has been a mistake in the drafting of a will, such as an error in the recording of the testator’s wishes
What is an Inheritance Act Claim?
Being involved in legal disputes over a loved one’s estate can be extremely distressing. However, if you have not been named as a beneficiary, or have not received what you expected, you
could make a claim under The Inheritance Act 1975. For example, when John Lennon, the famous Beatles singer was killed in 1980, his reported estate was said to be worth over £220 million. Yoko Ono and their son, Sean were the named beneficiaries. However, Julian, Lennon’s other son from his first marriage was not mentioned. After a lengthy legal battle, he successfully managed to challenge the will, reaching an out-of-court settlement of approximately £20 million.
While this might be an unusual case due to the size of the estate, inheritance disputes are not uncommon. In fact, legal battles of this nature between family and loved ones have been increasing in recent years. Under UK Law, The Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) allows a Will (or the intestacy rules) to be disputed on the basis that it fails to adequately provide for certain categories of people, known as eligible claimants, which include one of the following:
- A spouse of the deceased.
- A former spouse of the deceased. This only applies if you have not remarried.
- A partner who lived with the deceased for at least two years immediately before death.
- A child of the deceased.
- A person who was treated as a child by the deceased and the family of the deceased.
- Someone who was financially supported by the deceased.
Applicants falling under these categories must demonstrate that the provision made (or if there was no provision) is unreasonable. How the court considers what is ‘reasonably necessary’ or how they will make an award can involve various complex factors.
Claims under this Act must be issued at court within six months of the date of the Grant of Probate or Letters of Administration. Therefore, if you believe you have a valid inheritance act claim seeking legal advice as soon as possible is essential.
What is Proprietary estoppel?
Another possible route that can be taken when challenging a Will is something known as a ‘proprietary estoppel’ claim. Proprietary estoppel is when the testator has made an assurance or promise to you during their lifetime that you would receive the estate (or part of the estate), that you relied on that promise or assurance and in doing so, you suffered some detriment or disadvantage by not receiving the promised gift in the testator’s final Will.
How can you resolve Will or Probate disputes?
The process of challenging a Will or Probate can be deeply complex. You should seek advice from a probate solicitor with specialist knowledge of contentious probate rules. If you believe there is a valid reason to dispute the content of a Will or the handling of the probate process, we can help. Our experienced Wills and Probate team can ensure that every detail is covered, advising you if there is a legitimate cause for a Will to be disputed and that your legal rights are fully respected.
Do you have to go to court?
No, not always. Where possible, we will work with you to find a solution that allows the dispute to be settled out of court, advising on the various types of Alternative Dispute Resolution (ADR) mechanisms available to you. ADR methods are generally faster, cheaper and can reduce more conflict than is necessary in the wake of the death of a loved one. If this is not possible, we have the knowledge and experience to represent you in the courts.
If all the beneficiaries agree to an amendment to the Will, you will need a ‘deed of variation’. While you can write a deed of variation yourself, it is not recommended as there may be complex legal and tax implications if you make a mistake.
Specialist Wills and Probate Solicitors Kingston
Our specialist Wills and Probate team are experienced in helping clients in making or defending a dispute against a will or estate administration.
Sally-Ann Joseph is an Associate Member of the Society of Trust & Estate Practitioners and the firm is regulated by the professional governing body, the Solicitors Regulation Authority so you can be confident that the advice you receive will be tailored to your specific requirements.
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This blog post is not intended to be taken as advice or acted upon. If you are seeking legal advice, please contact our team of solicitors.
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