By: Simon B
Share This Post
Contested Wills and Probate
How to Contest a Will
Identify the executors or personal representatives and the solicitors dealing with the estate. Go to the Probate Registry and find the full name, date of birth, date of death and last permanent address of the deceased, which you can find out from the death certificate. You can order a copy of the death certificate from the General Register Office, for a fee of £9.25. If a Grant of Representation has been taken out the Probate Ministry will supply you with a copy also.
If you are suspicious of a Will, you should consult a solicitor immediately. They will investigate the situation around the preparation of the Will and can enter a caveat at the Probate Registry to prevent a Grant of Probate being taken out.
It is vital to act as quick as possible to stop the estate being administered and having its assets distributed in accordance with the possibly incorrect or fraudulent Will.
What is a Caveat?
A caveat is a method of temporarily stopping probate from being carried out. If you enter a caveat, the executor of the estate will no be able to get the Grant of Probate before the caveat runs out.
Caveats are often used to create time to work out whether there are or not there are grounds to oppose someone’s application for Probate or bring estate matters before the Court.
Examples of this can be when there is a dispute between two or more people being equally entitled to apply for probate or an allegation concerning the Will itself.
You can enter a caveat by yourself by writing to or visiting any registry with your signed request and address, and the full name, date of death and address of the deceased.
A fee of £15 is charged but you do not require a copy of the deceased death certificate. If you have decided that you wish to enter a caveat you should do so as quickly as possible.
An address in England or Wales is required. Two people cannot enter the same caveat. A caveat lasts six months, with the option of extending it another six months if needed. Extending the caveat cost £15 and must be done in the month before it is due to end.
Once a caveat is issued it is the responsibility of the executor and the person applying for probate to sort out their differences. A ‘warning’ may be issued against you by the person applying for the probate, which requires you to formally state your interest in the estate of the deceased, known as an ‘appearance’.
Once this has been entered, the caveat can then only be removed by a registrar. The registrar will do this when the matter has been resolved, which happens when a summons is issued by you or the person applying for probate by the District Probate Registrar, or a probate action in the estate is issued which will result in court proceedings.
The caveat can be withdrawn by the issuer by writing to the registry and returning the acknowledgement letter, but only if the aforementioned ‘appearance’ has not been registered. If there is no agreement it is recommended that legal advice is sought. This can be an expensive business with the possibility of losing and being liable to pay the other person cost as well as your own.
Time and Cost
Pursuing a probate court action can vary massively from a few thousand to hundreds of thousands of pounds for bigger more complex claims. If it is decided that a Will is invalid then any Will that the deceased made prior will be submitted to probate instead. If there is no previous Wills then the rules of Intestacy will apply to the estate, so it is, therefore, prudent to discover whether you would benefit from any previous Will or intestacy before pursuing court action.
If you launch legal action that you subsequently lose, it is likely that the Court will order you to pay the other side’s costs – on top of your own costs. Probate litigation is expensive, causes the delay of administration and could lead to the deceased’s final wishes being ignored.
Funding options to contest a Will
- Private funding
- Conditional funding. These are often advertised as no-win-no-fee arrangements; but it is important to remember that if you win, your lawyer will want to recover their costs (and possibly a success fee) from either the estate or the other side
- Legal Expenses Insurance (LEI)
Mediation is a method of minimising the costs of contesting Wills claims, disputes involving the administration of the estate and settling inheritances. During mediation, the parties involved in the dispute attempt to reach a settlement before going to court.
Mediation is less formal than going to court, and both opposing parties are given the opportunity to express their views. As such, often a solution can be found that allows both parties with something, rather than one with everything and the other with nothing. When contesting a Will, this is relevant as a Court can only decide whether a Will is valid or is not.
Although mediation is not cheap, it is certainly less costly than going to court. A key benefit of mediation is that it aims to help the parties reach an agreement, rather than battling in court.
Grounds for contesting a Will
Provision for family and dependants under the Inheritance Act
Under the Inheritance Act of 1975, a Will can be contested if the deceased failed to provide reasonable financial provision for someone who is eligible to bring a claim. If a claim is successful, the other beneficiaries will receive less than they were originally allocated.
Even a successful claim does not necessarily lead to the wishes of the Will being totally disregarded. Those mentioned in the Will are still likely to get a decent payout.
Claims must be made within 6 months of the date of the grant of representation. The court can, at its discretion, allow claims beyond this deadline, but there would need to be a very good reason for the delay. A claim can only be made if the deceased was ‘domiciled’ (was permanently residing) in England and Wales at the date of their death.
Who qualifies under the provision for family and dependants?
- The spouse/civil partner of the deceased
- The former spouse/civil partner of the deceased who has not remarried or formed another civil partnership
- A child of the deceased, or an adopted child of the deceased
- A person treated as a child of the family in relation to the marriage by the deceased i.e. a step-child
- Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased
- A person who has been living in the same household as the deceased for two years or more ending immediately before the date of the deceased’s death
- A claim by a spouse is not limited to maintenance, but claims by everyone else will be
- The amount financially the applicant needs or is likely to need in the foreseeable future
- The amount financially any other applicant needs or is likely to need in the foreseeable future
- The amount financially which any beneficiary of the state of the deceased has or is likely to have in the foreseeable future
- The size of the estate of the deceased
- Any disabilities of the applicant for the provision or toward any beneficiaries of the estate of the deceased
- Any responsibilities and obligations of the deceased
- Any other matter the court may see as relevant.
Reasonable financial provision factors
You must bring your claim under the Inheritance Act no later than six months after the date on which representation of the estate of the deceased is taken out unless you have the permission of the court to issue proceedings outside that time.
With a population that is increasingly wealthy but ageing, there is a greater chance of the vulnerable and elderly falling victim to undue influence from family members or carers. Legal challenges to the Will may be started in a situation where assets or money are diverted away from the family to a so-called friend of the victim.
Undue influence law is invoked when the person suspected of having influence receives an inappropriately large part of an estate. Also, if it is suspected that a third party is suspected of having an influence in the creation of a Will in the favour of a friend or relative, this is considered fraud and can be proved under this law. The deceased need not have been suffering from mental problems for the courts to pursue this. Any use of manipulation, deception or intimidation to have influence over the content of a Will is enough for undue influence court action.
If the family members or other beneficiaries can prove coercion or manipulation, the court will generally revoke the Will. In that case, the probate court treats the estate as intestate and follows the Rules of Intestacy. The Rules of Intestacy follow a hierarchy of inheritance, beginning with the spouse and children, parents and other blood relatives, followed by other more distant relatives.
Producing evidence of undue influence can be very difficult, and it is more common to claim that the deceased lacked knowledge or approval of the contents of the Will. This generally means that although the deceased very well may have understood the points of the Will, they did not completely comprehend or approve all of the clauses.
It can be argued that if it takes a fully trained and experienced solicitor many hours to read and comprehend everything in a fifty-page legal document, an 85-year-old with no experience in legal matters may not have fully comprehended or approved all of the clauses.
Lack of Testamentary Capacity
Another way of demonstrating that a Will is invalid is by proving a lack of testamentary capacity in the deceased at the time the Will was made. The basic premise of this is that they were not “of sound mind” when the Will was written, leading them to make decisions that they would not have made if they were healthier. They may not have understood what the Will was or it’s importance, or could have made choices motivated by confusion or misapprehensions.
Lack of testamentary capacity may be due to mental or physical illness. Testamentary capacity could be deemed insufficient because of mental illness, most commonly Alzheimer’s disease or other types of dementia. It can also be caused when the deceased was heavily drugged with painkillers when terminally ill. It is extremely difficult to succeed in this claim as the main witness in the piece, the deceased, cannot be in court.
Negligent Will drafting
You could bring a claim against the drafter of a Will if you think that he or she has been negligent. In preparing a Will, the solicitor owes a duty of care to the intended beneficiaries as well as the testator. Examples of this can include failure to make sure that the testator was entitled to leave the property, or taking so long to make a Will that the intended maker dies.
Personal Representative disputes
You may think that the Personal Representative of the estate is not acting in the best interests of the estate, is acting negligently or is failing to provide the necessary information to people. You may also have a disagreement with them about their decisions or feel that feel they are misusing their power because they have a personal interest in the case. If this is the case, it’s possible to apply to the court to remove him or her or appoint a judicial trustee.
Estate administration claim
The executors and administrators of an estate are under a legal obligation to collect and safeguard estate assets, pay the debts of the deceased and distribute the estate to its beneficiaries correctly. If they fail their responsibilities it can lead to the estate suffering loss. Reasons for this include selling assets under their real value, or not collecting all of the assets of the state properly. If this is the case, they can be personally liable for maladministration or misappropriation.
Forgery of a Will is notoriously hard to prove in court, and there can be costs and risks if you allege fraud and then fail to prove it.
It is possible to make a claim that you have funded the acquisition of an asset that is held in the name of the deceased, but that actually belongs to you.
It is possible to enforce a promise made by the deceased that is not fulfilled in the Will if you relied on that promise and acted upon it.
Defending a Contested Will Claim
The first thing you should do is seek legal advice, or consult a lawyer who specialises in contentious probate. It can be difficult for a challenger to prove that the Will is invalid because of undue influence or a lack of testamentary capacity. Nonetheless, the factors mentioned above, as well as the general time scales of this situation, can make dealing with this very costly.
You could, however, try to ‘warn off the caveat’, which is a paper-based application to the Court. However, if the caveator enters an Appearance to your warning, the Caveat will become permanent and can only be removed with the consent of the Court. This can incur costs for both sides.
It may be a better bet to try and sit down with the challenger and sort out a solution that prevents a long legal battle. Even if you know you’re in the right, it may be quicker and easier to offer them a small sum of money.
Things to do
- Hire an experienced probate lawyer immediately
- Gather witness statements
- Gather full financial information
- If you have a note from the deceased explaining the reasons behind the Will, this is extremely useful
- You may need expert medical evidence if the claim relates to lack of capacity to make a will
- Remember that if the challenger’s case looks hopeless, you should demand that they evidence their case
- Be patient, it’s unlikely to be resolved quickly
- If you offer to settle, they could consider it a sign of weakness. The challenger may think she has a chance of winning when they might not have a legal leg to stand on
- Costs can quickly escalate – if you’re not prepared to negotiate, be prepared that you may end up spending tens of thousands of pounds if the case drags on for a long time
- Be aware that even if you win, if the challenger is deemed by the judge to have had good reason to contest, your legal costs may have to come out of the estate.