Invalid Wills
There are several reasons why a will may be deemed invalid when making a contentious probate claim:
- The testator lacked the necessary testamentary capacity to understand its consequences while making it, as a result of old age, mental illness, medication or other causes
- The testator lacked the knowledge of its contents, or did not approve of the terms
- The testator was unduly influenced or coerced into making it
- There is a significant discrepancy between the true intentions of the testator and the legal consequences of the will as written
- It was not executed correctly under the recognised criteria, such as if the testator was not at least 18 when it was made, they did not sign it or used an incorrect signature, or it was not signed in front of two independent witnesses
- It was forged by someone else or the testator’s signature was forged
- It has been damaged or scribbled over (as in the recent case regarding Aretha Franklin’s estate, although please note that this is a US legal case)
We discuss these in greater detail on our contesting a will page.
Any of these reasons can be put forward as a means to contest the probate of an estate. If you wish to take this action, it is a good idea to speak to a specialist contentious probate solicitor to determine if your claim has a chance of success.
Mishandling of an Estate
Furthermore, many contentious probate disputes are brought when the executor or administrator does not follow the terms of the will (or rules of intestacy), or does not act in accordance with their financial or other duties (which go with the role).
In these situations, you may be entitled to make a claim against the executor or administrator personally, or it may be possible to apply to Court to have them removed from their role (section 50 of the Administration of Justice Act 1985). There are strict deadlines in making any Court application, so ensure that you take legal advice from a specialist contentious probate solicitor as soon as you realise there is an issue.
The Inheritance (Provision for Family & Dependants) Act 1975 outlines the rules regarding who can contest the terms of a loved one’s will (or rules of intestacy if there is no will) if they feel they have not been fairly provided for financially.
The only people who may launch a contentious probate claim via this act are:
- The spouse or civil partner of the deceased
- A former spouse or civil partner (when the deceased had not remarried or entered another civil partnership prior to their passing)
- A child of the deceased
- Any person treated by the deceased as a child, whether it was via a marriage/civil partnership or another member of the family that the deceased acted as a parent of
- Any person who, at the time of the deceased’s passing, was being wholly or partly maintained by the deceased
In order to determine if reasonable financial provision has been made, the Court will take into account many factors including:
- The financial needs of the person(s) making the claim
- The financial needs of the beneficiaries of the estate
- The responsibilities the deceased had towards the person(s) making a claim or the beneficiaries
- The size and nature of the estate
- Any physical or mental disabilities of claimants or beneficiaries
- The conduct of any person making a claim or any other relevant person
It is important to note that if you wish to make a claim under the Inheritance (Provision for Family & Dependants) Act, you have a six month deadline to do this from the Grant of Probate (save where there are exceptional circumstances).
We therefore recommend you speak to a contentious probate solicitor as soon as possible if you have concerns. This will help to establish whether you have a claim and a challenge can be lodged before the deadline passes.
