Contesting a will
- Who can challenge a will?
- What are the grounds for contesting a will?
- The process of contesting a will
- Disputes involving an executor
A will should represent the wishes of its writer (“the testator”) and sometimes this means it should also provide for any dependents. If you have lost someone, and you feel that their will has failed to fulfil those criteria, it can be a distressing and frustrating experience. That may be because you suspect the person may have been wrongfully influenced, or that the will may be fraudulent, or you may simply feel that the provisions of the will are not fair. In this situation, you could have legal grounds for contesting a will.
Alternatively, you might find yourself in a position where a loved one has died without a will and you have concerns regarding the way the estate has been distributed. Maybe you are the executor or beneficiary of a will that is being questioned and you need advice about how to proceed. This page is intended as general guidance and hopefully it will offer some useful information. However, there’s no substitute for taking legal advice from a solicitor on the particular circumstances of your individual case.
If you’re experiencing any trouble with probate and you’d like to go through your options, we’re here to discuss your concerns. Give us a call on 01702 477106 or drop into one of our offices in Leigh-on-Sea to speak to one of our wills, trusts & probate solicitors.
Below is a comprehensive article covering the most frequently searched and asked questions relating to: Who can challenge a will?, What are the grounds for contesting a will?, The process of contesting a will and Disputes involving an executor
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The Inheritance (Provision for Family and Dependants) Act 1975 sets out who may challenge a will or intestacy. According to the Act, any of the following may apply to the court for reasonable financial provision:
If you wish to view the Inheritance (Provision for Family and Dependants) Act 1975 in more detail, you can read it in full here. If you’d like cut through the legal jargon, please don’t hesitate to contact Giles Wilson – we’ll put you in touch with one of our specialist solicitors.
If you are financially dependent on the deceased, or if you share responsibility for a dependent child of the deceased, you may be in a position to successfully dispute the will. For example, you may have had a child with the deceased, and then the deceased went on to have a second family while making child maintenance payments to you.
In this situation, should the deceased’s will make provision for the children of the second family only and not your own, your child could have a very good case to dispute the will in order to secure provision on the basis that you were financially dependent on the deceased (for the benefit of your child).
A broad range of circumstances where an interested party is financially dependent on the deceased may be considered by the courts. If you feel that you may struggle financially owing to the withdrawal of financial support from a testator after their passing (even indirect financial support, for example, living in their property rent-free), and you have not been provided adequately for in the will, get in touch and we can help you to determine whether or not you have a promising claim to dispute the will.
If a person named as an executor wishes to contest the will, they are entitled to do so. However, given the obvious conflict of interest (between administering the estate and challenging it), they must usually entirely relinquish the role of executor prior to carrying out any of their duties (if they don’t, then they may be deemed to have “intermeddled” in the estate). They may then proceed to challenge the will with the same rights as any other party. In this situation, responsibility for executing the will would pass to one of the other named executors, or if no other executor is available, other executors would need to be appointed.
If the deceased has actually left a will that does not name you as one of the beneficiaries, and there are no legal grounds to contest the will, then there is no automatic entitlement to a share in the estate.
If the deceased dies without having left a will, the estate (or part of it, depending on the value of the estate) will pass to a surviving spouse or civil partner. In their absence, it passes to the deceased’s offspring, then onto ‘entitled relatives’ and so on in priority order. If the value of the estate is above a certain threshold, the surviving spouse or civil partner will be entitled to a share of the estate, and the balance will then be distributed to certain of the remaining family members. The order of priority, in very simplified terms, for inheritance when the deceased dies intestate is:
Note that if you are adopted, you have the same rights as biological offspring among your adoptive family, but no rights among your biological family (although a new law states that adopted children born after 2014 whose parents died before their adoption do have an entitlement.)
Beyond the actual spouse or civil partner themselves, anyone related to the deceased through marriage only has no entitlement to the estate.
Where no will exists, if you feel that you have an entitlement to part of the estate based on satisfying one of the above categories (which is not being recognised by the personal representative(s) who are administering the estate), one of our specialist solicitors can help you to understand your position and build a strong case. Where no will exists and you are an automatic beneficiary under the rules of intestacy, but you don’t feel that these rules make reasonable financial provision for you, you may still be able to claim for additional benefit under the Inheritance (Provision for Family and Dependants) Act 1975.
If you feel aggrieved, either on your own behalf or on someone else’s, at the way that a will distributes the assets of the deceased, you may consider contesting the will. There are various reasons for contesting a will, but the first thing you will want to establish in this situation is what, if any, grounds you may have on which to mount a legal challenge.
Essentially there are 2 main types of challenge: either the will is not valid for one or more of these 6 reasons or the will is valid but it can still be challenged under the Inheritance (Provision for Family and Dependants) Act 1975:
Contesting a will on the grounds that that the testator (the person writing the will) did not have testamentary capacity is essentially claiming that they did not have sufficient understanding of the process owing to poor mental health or compromised cognitive or sensory abilities.
In order for a will to be valid, the maker of the will must be of sound mind and have mental capacity at the time of writing. If you believe the testator lacked capacity at the time the will was prepared and signed, then it could be considered invalid.
This claim relies on demonstrating that the will is not valid because of circumstances surrounding the preparation and signing of the will, i.e. that they did not satisfy all the necessary criteria for the creation of a valid will.
That might be because:
The law presumes that these criteria are met and that the will is valid unless it can be demonstrated that they are not. So, when challenging a will, at the start the burden of proof lies with the challenger.
For a will to be valid, the testator must have knowledge of the contents, and approve of the terms of the will. A lack of knowledge or approval is therefore grounds to contest the will.
Most professionally written wills feature what’s called an ‘attestation clause’ which is a passage that confirms that the testator has read and understood the terms of their will in its entirety. If the testator has read and acknowledged the attestation clause, then it is unlikely that the will can be set aside on the grounds of lack of knowledge and approval (although the facts of each case do need to be understood before coming to this conclusion).
If the will features no such clause and there is evidence that the testator did not know and approve the terms of the will, a case can be made to set aside the will. Typically, challenges will focus on suspicious circumstances surrounding the preparation of the will, for example:
This challenge to a will would be to demonstrate that a third party had put significant pressure on the individual who made the will (which can be emotional, verbal, physical or financial pressure). If the actions caused the person making the will to change their mind about the distribution of the estate, this could call the validity of the will into question.
The task of proving that this can be a difficult one, and relies heavily on the particular facts of the case.
As you would expect, a fraudulent or forged will is of course invalid. This could be because someone has forged the testator’s signature in order to benefit themselves or others. In this case, the circumstances around the signature would have to be investigated. A will made in a solicitor’s office, adequately witnessed and recorded, would be a difficult one to challenge, but a forged signature, made in dubious circumstances, should be successfully contested.
But it’s not just forgery that can cause fraudulent wills. If for example, a would-be beneficiary makes false testimony to the testator, slandering a rival beneficiary, the will can be considered fraudulent. This can be a difficult challenge to mount, but one of our specialist solicitors can work with you to construct a strong case to present to the courts, where the facts justify a claim.
If an error was made during the preparation of a will that results in it failing to achieve the testator’s intended outcomes, then it can be challenged via a rectification claim. Such a claim would rely on producing testimony that demonstrates a significant discrepancy between the true intentions of the testator and the legal consequences of the will as written.
If the language of the will is unclear, and a claimant feels that a beneficiary has benefitted unfairly as a result, then a construction claim can be made to resolve the ambiguity in the will in question. A case will be made to the court, which will determine the definitive interpretation of the will’s content.
A will can be changed, before the death of the testator, if they now lack mental capacity and if you feel that the existing will does not uphold the wishes of the testator or it does not take account of everything it should in the current circumstances. In instances where the testator now lacks the mental capacity to make a new will, a ‘financial deputy’ can be appointed to administer their affairs (through the Court of Protection), and the Court can order a new will to be made (a “statutory will”). The financial deputy must always act in the best interests of the testator and ensure that any new will reflects what is fair in order for the Court to sanction a new will.
The process that a Giles Wilson solicitor will go through with you as a client will involve a consultation, followed by any urgent interim legal action that’s necessary – potentially the lodging of a caveat or urgent court action, followed by attempting resolution through negotiation or mediation (where appropriate), and as a last resort, court proceedings.
At the outset, we will work with you to determine whether you have good grounds to challenge the will or intestacy, and whether there will be sufficient, compelling evidence to present in support of your claim for the case to be successful.
Interim legal action
If the grant of probate has not yet been issued, we can consider lodging a caveat, which will put the process on hold (by preventing a grant of probate being issued) for a fixed term of 6 months to allow issues to be resolved. You can read more about caveats in our ‘grants of probate & caveats’ section below.
Together we can consider the option of exploring an alternative forum for resolving the dispute such as mediation, which can prove quicker, cheaper and less acrimonious than going to court.
If, however, it is necessary to go to court, Giles Wilson’s expert solicitors will be well-prepared and committed in representing your interests.
For further information regarding how to contest a will and the processes involved, you can find the Association of Contentious Trust & Probate Specialists (ACTAPS) guidelines for resolving probate and trust disputes here. Or alternatively, speak to our contentious probate solicitors who can help take you through the process of disputing a will as members of ACTAPS.
There’s no one-size-fits-all answer to this question. Each case is different, so each case will have different costs associated with it. However, there are responsible measures you can take to limit the costs you may be exposed to.
Buying into to the idea of using mediation, rather than the courts, to resolve your issues can save you both time and money (in the right type of case). If your dispute is with family members where there is still the potential for compromise, for example, then a commitment to mediation, along with a conciliatory approach, may leave you far better off.
Engaging a specialist solicitor will help to resolve your issue as quickly and efficiently as possible, which may also cut costs in the long run. It can be tempting to save solicitor’s fees by representing yourself, but if the resulting cost is that you lose your case owing to inexperience, then this is a heavy price to pay. The art of negotiation, as well as the law and court process of course, is something in which all Giles Wilson solicitors are well versed.
Perhaps most importantly, a responsible, experienced solicitor will advise you when it’s not worth pursuing your claim in court in the first place – if there’s very little chance of success. Taking your case all the way to court and then losing is a very expensive business. Not only will you be losing out on your inheritance, but you may also pick up the bill for the other side’s legal costs.
It’s important to act quickly if you intend to challenge a will, for a couple of reasons:
Firstly, it is preferable to start proceedings before grant of probate as contesting a will after probate means that the executor may have started distributing the estate. This may result in difficulties recovering any assets that may have to be redistributed as a result of the challenge.
Secondly, it is important to start proceedings promptly owing to deadlines set out by law. The statutory time limits for a claim to be submitted vary according to the type of claim and are as follows:
Beyond the content or validity of the will, you may be experiencing other hurdles that are preventing you from receiving the inheritance that you are entitled to.
Executors are the people appointed to administer someone’s affairs after they pass away. Duties involve dealing with the estate, overseeing the payment of inheritance tax, recording costs and transactions, communicating with beneficiaries and distributing assets among them. Contentious issues may arise if executors cause delays, fail to take action, do not behave prudently or act fraudulently.
We are seeing a rise in instances of disputes between beneficiaries and executors, possibly in connection with the rising trend for non-professionals to handle the probate administration.
The workload associated with administering a will is often underestimated. People with no prior experience who are named as executors of a will often quickly find themselves struggling when the time comes to carry out their duties. This is why it is often beneficial for a solicitor to be involved in the administration of the estate.
When an executor, either through malice or mere lack of experience, appears to be failing to carry out their duties in an honest or competent or timely manner, a beneficiary may feel the need to take action. When such issues arise, it will be beneficial to seek legal representation.
An executor may appear negligent simply because they have seriously underestimated the scale and complexity of the task before them. There can be a lot of arduous administration and intricate financial work to be carried out during the probate process, particularly when it’s hard to locate the relevant documents, or if the estate is large or complicated. It may well be that your executor is simply struggling with the workload.
While, the resulting delay can be inconvenient and frustrating, it’s worth the would-be beneficiary approaching discussions with the executor with an appreciation of how time-consuming and involved the probate process can be. It is common for the process to be ongoing for 6 to 9 months before the transfer of assets to beneficiaries, and it’s not uncommon for that period to extend beyond 1 year where a substantial estate is involved.
The executor needs to understand, however, that they are personally liable for their actions, and failure to administer the estate in accordance with the law, and within certain timeframes, can result potentially in personal adverse financial consequences. A sound knowledge and understanding of tax law is also required because a competent executor can often take completely lawful steps to minimise potential tax liabilities, thereby saving the estate money, and increasing the amount available for beneficiaries.
Only when a sympathetic and communicative approach is exhausted, or if it transpires that the executor is either out of their depth or acting in a deliberately and maliciously obstructive way, is it worth considering legal action. If the executor’s negligence is such that assets mentioned in the will are at risk, for example, then steps should certainly be taken to move that responsibility over to a more capable party. Sometimes this can require urgent action, depending on the facts of the case. As always, the earlier you take advice from a specialist solicitor, the better the chances are of preventing further problems.
An executor can be removed through the courts if they have criminal convictions, if they are unsuitable owing to a vested interest in the outcome of the probate process, or if it can be demonstrated that they are incapable of completing the tasks required of them. If you have concerns about the suitability of an executor, you can discuss the issue with one of our specialist solicitors.
When the testator passes away, the executor(s) named in their will applies for a grant of probate. The grant of probate empowers the testator to act legally on the deceased’s behalf in order to administer their estate.
If someone has an objection to this process going ahead, they may issue a caveat, a sort of injunction that imposes a moratorium, or waiting period, of 6 months before the grant of probate can be sealed. After the 6 months is up, either the caveat expires and the process of probate administration can commence, or the issuer (the ‘caveator’) can extend the caveat for a further 6 months. The caveat can be extended indefinitely in 6 month increments. Caveats are only justified in certain circumstances, however.
The would-be executor is not without recourse. If he or she does not wish to wait for 6 months in the hope that the caveat lapses, they can mount a challenge. Initially, the would-be executor issues a warning to the caveator of the impending challenge. If the caveator fails to enter an “appearance” in reply to the warning, within a very short timeframe, this will be enough to remove the caveat. If the caveator does choose to defend the caveat, then the only way for the would-be executor to overturn the caveat would be through court proceedings. Failure to overturn the caveat could land the executor with a bill for costs. Equally, wrongly lodging a caveat can result in the caveator having to pay costs.
A caveat is not intended to be used as a means of stalling the probate process when there are concerns regarding the provisions of the will itself, only when there is concern about the validity (or similar) reason. Caveats issued for these purposes would most likely be easily overturned if challenged.
If you have concerns about a will, drop in or give us a call and we’ll be able to discuss proceedings based on sound legal practices that will stand you in good stead and increase your chances of a favourable outcome.
Conversely, if you are struggling to fulfil your role as executor and you feel that you have fallen victim to nuisance tactics from a caveator, or any other party, we can help you to understand your legal position and to take the appropriate steps, ensuring you are able to carry out the probate process efficiently and uphold the wishes of the deceased.
Being denied access to a will can be unsettling, but prior to grant of probate, the executor is under no obligation to let you see the will.
There are 3 stages in the lifespan of a will that each carry different stipulations regarding who can access the will at that time:
Generally speaking, the will is a private document for the first 2 stages: before the testator’s death, and prior to grant of probate. After probate is granted, the will is a public document that anyone may obtain and view. You can search for probate records on the government’s website here.
If no grant of probate is made, then the will remains a private document. Until probate is granted, only the executors themselves have the legal right to read it. If the will is being held by a solicitor’s firm, the solicitor won’t be able to divulge the contents without the express permission of the executors. They can however use their discretion in terms of letting you know the deceased’s wishes for their funeral arrangements. It is the responsibility of the will’s executors to lodge the will in the Probate Registry and inform the beneficiaries.
If you need help locating and interpreting a will following grant of probate, or you feel an executor has been remiss in their duties of informing beneficiaries, contact us and arrange a meeting with one of our experienced solicitors.
Suspecting a will to be invalid or facing a legal challenge to your inheritance adds to an already emotional and distressing time. Our Wills and Probate specialists will take the time to understand your grievance, assess whether you have a case and then advise you on the appropriate course of action, keeping you up-to-date at every stage of the process.
Losing a loved one is hard. It can be even harder when dealing with inheritance disputes. If this is the case, Giles Wilson’s will dispute solicitors can act on your behalf. We’ll help you to determine whether we can proceed together to ensure that the estate of the deceased is disbursed justly and lawfully.
If you have any uncertainties regarding any of these issues, please don’t hesitate to contact us. Give us a call on 01702 477106 or drop into one of our offices in Leigh-on-Sea to speak to one of our wills, trusts & probate solicitors.
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