What is contentious probate?
Contentious probate is a dispute relating to the interpretation of a Will, the administration of a deceased person’s estate, the value of assets. or dealing with problematic executors or beneficiaries who are in disagreement.
What is an inheritance dispute? / What is a disputed Will?
An inheritance dispute or a disputed Will occurs when someone, usually a beneficiary or family member, believes that there are issues with the Will’s validity – for example, the Will may have been made under duress or by a testator who lacked mental capacity – or that the Will has failed to make reasonable provision for an individual who then seeks redress to resolve the issues, either by going to court or a resolution facility.
What can I do if a Will is unfair?
If you think that a Will is unfair because it fails to make reasonable provision, that it may be invalid, or that it hasn’t been written properly and has accidentally disinherited someone, then the first step is to see a specialist contested Wills solicitor for legal advice to discuss your situation.
Can you challenge a Will?
If you believe that the Will may not be valid; the testator lacked mental capacity or had not fully understood the terms of the Will; someone exerted undue pressure on the testator; the original Will is lost, damaged or destroyed; or the Will is unfair to one or a number of beneficiaries, then you can challenge that Will. The first important step is to seek legal advice from a contested Wills specialist solicitor.
Who can challenge a Will?
Not everyone can contest a Will. Typically the following persons can challenge a Will (in the appropriate circumstances):
- Family members, especially blood relatives
- A person who was financially dependent on the deceased, such as an unmarried partner
- Someone who was named as a beneficiary in a previous Will, or who is named in the current Will and feels the Will does not make reasonable provision for them
- Creditors – a person, business or organisation who is owed money by the deceased
- A person who claims to have been promised a pecuniary gift, asset or property by the deceased before they died
Contesting a Will after probate
If you wish to contest a Will under the Inheritance (Provision for Family and Dependents) Act 1975, then you must do so within six months of the Grant of Probate being issued. It is important that you seek legal advice as early as possible if you are thinking of contesting a Will. There is no time limit for contesting a Will if the Will is fraudulent.
How long do I have to contest a Will?
If you wish to contest a Will under the Inheritance (Provision for Family and Dependents) Act 1975, then you must do so within six months of the Grant of Probate being issued. If you are a beneficiary making a claim against the estate, then you must make the claim within 12 years from the date of death. There is no time limit for contesting a Will if the Will is fraudulent.
If you wish to challenge a Will before probate is granted, then you can apply for a caveat to prevent the grant of probate being issued. It is always better to challenge before probate to prevent an unscrupulous executor from disposing of the estate.
Grounds for challenging a will
The most common grounds for contesting a Will are:
- Diminished mental capacity.
- Lost, damagedor destroyed Will
- Negligent or bad drafting of a Will
- Estate maladministration
What is testamentary freedom?
Testamentary Freedom is an important principle in English law and allows an individual the freedom of choice to leave their property and estate to whomever they wish in a Will, even if that choice is to leave their state to a charity and not to any family members.
What are the common reasons for challenging a Will?
The most common reasons for contesting a Will are the rise of second marriages and "blended families"; the increase in inadequate "homemade" or "DIY" Wills; financial or other difficulties leading to some parties being "disinherited" or "written out"; the long-term rise in property prices, which, in effect, means that potential beneficiaries have more to fight over; and issues with the actions/motivations of the executor
Cost of contesting a Will
The costs of contesting a Will can be expensive, and if your claim is unsuccessful, then you may have to pay the costs of the other side. There are 2 exceptions to this: the losing party is not usually ordered to pay the other side’s costs if the testator or those interested in the residue of the estate are the reason for the litigation or if it is reasonable to investigate the Will.
Challenge executor of Will
If a beneficiary feels the executor is not fulfilling his or her duties or is acting improperly, then the beneficiaries can challenge the executor. The first step is to write to the executor outlining your concerns and request an account of activities. If this is unsatisfactory, the beneficiaries may seek a Section 50 application to have the Court remove or replace the executor.
Contentious probate solicitors
Oratto’s specialist contested probate solicitors have many years of experience in this difficult area of law, and they understand how distressing and challenging a Will or contesting probate can be. We can connect you to the right lawyer for your situation, even if you would just like a one off consultation. Just call our National Helpline on 0845388 376 or use our contact form to request a call-back.