In 2019 insurance company Direct Line released details of a survey which claimed that as many as one in four of us would be prepared to dispute a Will or contest probate.
The survey, carried out in July 2018 across the UK, found that residents of Southampton, Norwich and London were the most likely to contest probate or dispute a Will in the event they were unhappy.
Furthermore, the insurer outlined how in 2017 there was a six percent rise in the number of contested probate claims and how the number of such cases reaching the High Court had reached a record high. In fact, the same year saw 8,000 attempts to block Grant of Probate or Letters of Administration because of some issue regarding the validity of a Will.
But what do you do if you believe that a Will is not valid; perhaps the testator lacked mental capacity at the time of making it, perhaps someone in the Will writing process exerted "undue influence" on the testator or perhaps probate was applied for by the wrong person?
Here we take a look at four important issues to consider before contesting a Will.
1. Consider the Cost
Contesting probate can be expensive and you will have to decide whether it makes financial sense to enter a caveat and to begin the legal process necessary to challenge a Will.
It is important to understand that costs are at the discretion of the court and if you lose, you could be ordered to pay the other side's costs. Furthermore, even if you win, the estate may be liable for the costs of the litigation and thereby its value will be reduced. It is important that you discuss all possibilities with an experienced contested probate lawyer before proceeding and that, if you do decide to go ahead, you have a clear idea of the possible legal costs.
2. Consider the Emotional Impact
Our identity, including our past, present and future, is often entirely bound up in the estates and possessions of our parents and family. The loss of a loved one is hard enough, but add to that a feeling of injustice at not getting your fair share alongside the stress and acrimony so often inherent in contested probate litigation and you have a recipe for many long days and nights of worry and anxiety as the case progresses.
Of course, doing nothing may be a similarly difficult course of action as it may leave you with intense feelings of regret regarding the emotional and financial loss, and you may rue your inaction for years to come.
So, whatever you decide to do, be prepared for the inevitable upheaval that comes with contested probate.
3. Consider Timely Action
There is a difference between being timely and being hasty: by taking prompt legal advice regarding your rights and options you can ensure that you are doing the former rather than the latter.
It is important to remember that if you are submitting a claim under the Inheritance Act, you have a six-month time limit from the date probate is granted. However, if you are challenging a Will on the grounds of fraud, you will have a longer timescale.
Regardless of your circumstances, the sooner you take decisive action and seek the advice and guidance you need the less the likelihood for making hasty, rash decisions based on feelings of injustice, unfairness and uncertainty.
4. Consider your Legal rather than Moral Grounds
Unfortunately, even if you were verbally promised a greater share of the estate by your parent in recognition of the personal and professional sacrifice you made in looking after them during their final years or in some other situation, unless there is a legally enforceable Will or codicil to an existing Will detailing this commitment, you will not have grounds for a contested probate claim.
Generally speaking, there are four major legal grounds upon which a Will can be contested. These are as follows:
- The Will was not signed and witnessed in the correct way and there are reasonable questions regarding validity.
- The testator lacked mental capacity at the time of signing the Will.
- The Will or signature on the Will have been obtained by fraud.
- The testator was unduly influenced by a party who took charge of the process
Legal Advice is Everything
Sourcing suitable legal advice is everything when it comes to contesting probate. Oratto's specialist contested probate solicitors can help you establish your rights and options. Call our National Helpline on 0845 388 376 or use our contact form to request a call-back.