Contested probate is on the increase, with the number of will disputes now at record levels. As specialist Contested Probate Solicitors we are able to use both our probate and litigation experience to help you with your case. We act regularly for Executors, Trustees, and disappointed family members in a variety of contested probate cases. A list of past and current cases we have acted on can be seen by clicking here.
How to challenge a will
Contested probate is a very complex area, with the number of legal challenges to wills strictly limited, however we find that the majority of will disputes often fall into one of the following areas :-
- • Undue influence and fraud wills, these types of cases arise when the testator (the person making the will ) is often pressurised to make or alter their will, while fraud wills can arise when signatures are altered or wills even destroyed.
- • Invalid wills. All Wills must comply with the Wills Act. This provides that the will must be in writing, signed, dated and witnessed by two independent witnesses, ( neither of whom can be a Beneficiary ) at the same time as the person making the will. If any of these rules are not complied with the will is invalid and fails.
- • Lack of Capacity to Make a Will. The person making the will must have understood the nature of actually making the will, the extent of the property which he/she was disposing of and the claims to which he/she ought to give effect to. These principals where established in a very old case called Banks –v- Goodfellow. Will disputes are common when the person making the will ( known as testator ) may have been suffering from Alzheimer's disease or other forms of dementia.
- • Claims for financial maintenance. These types of claims can be made against the estate if it can be showen that the person making the claim was in someway financially dependent upon the Deceased before he or she died. The time limit to make a claim is very limited ( just 6 months from the date of the Grant of Probate ) while to claim you must fall into one of the categories of Claimant listed under the Inheritance Act.
Other common will disputes arise when the Executor has acted unreasonably, or when the Deceased has made very clear promises of an inheritance, only to then disinherit or cut someone close to them out of their will.
How to stop probate: Process of contesting a will
If you have been cut out of a will time is often of the essence in making a claim. As a result of this, it is always very important that you obtain a Copy Will as soon as possible. Sometimes the Executor may acted unreasonably and refuse to provide a copy of the will, if this is the case one way of pressurising the executor into providing a copy of the will is to issue what is known as a Caveat. This is a bit like an injunction and prevents Grant of Probate being issued and is therefore really useful in ensuring the will is provided, otherwise probate can not be issued, and assets can be disposed of. We can issue a caveat straightaway in very urgent cases.
Frequently asked questions about contesting a will
Do I have a case ?
Contesting a will is a complex area, and as such expert evidence should always be sought straightaway - never assume anything. At the beginning of every case we will go through a detailed series of questions, and review the will and the manner in which it was prepared, sometimes if there are issues as to the Deceased persons capacity we will obtain the medical records of the Deceased as part of our investigations. If it is the case that the Deceased provide financial support in whatever form, we will need information relating to a prospective claimants income and expenditure. Whatever your concerns with a will, we will always provide straightforward advice at the beginning of your case as to whether you are likely to succeed.
what are the most common grounds to contest a will ?
Whilst there are lots of different ways to contest a will, we find that the two most common grounds relate to challenging the will itself - typically this will concern how the will was signed and witnessed or whether the deceased had the capacity to make a will, the second most common ground relates to a claim made under the Inheritance Act for financial provision to be paid from the estate when it can be shown that the persona making the claim was financially reliant upon the Deceased.
What will it cost to contest a will ?
We have a range of funding options that vary depending upon the nature of the case. In all cases, we find that the most favoured way of funding is on a No Win No Fee basis - this is very straightforward and easy to understand. If the case is not suitable for acting on a contingent basis then we can act on a deferred fee basis, or a fixed fee basis.Will my case go to Court ?
A common concern is that many clients wrongly believe that their case will go to Court. This is very rare as in our experience less than 1% of cases go to Court. The majority of cases settle through negotiation or mediation.
How long will case take ?
Contesting a will can take time as often evidence has to be obtained in order to present a claim. Once a letter of claim has been sent then protocols do operate that provide timescales for both parties to reply and set out their case. As a result of this, there is no set timeframe or average as each case is always dependant upon the facts as well as the parties involved and how open they are to compromise
What information will you need to assess my case ?
We start off every case with a fact find, this involves the completion of a questionnaire, which provides us with the background circumstances of a case and the issues in the claim, we will also need a copy of the will.
The Executor has refused me a copy of the will ?
If the Executor has refused to send or provide a copy of a will, we can help. firstly, it is important to request a copy of the will, from the solicitor who is handling the estate. If the solicitor or executor refuses, then a Caveat can be issued this would prevent probate from being issued and lasts for 6 months and can be renewed. Typically, information relating to the signing and preparation of a will can be provided via what is known as a Larke -v- Nugus statement. This is provided by the solicitor who drafted the will, and there are clear protocols that provide guidance on the disclosure of documents and evidence used when a will is prepared.
We are a specialist contested probate solicitors and have expertise in all aspects of will disputes - Call our legal helpline for immediate legal help and assistance.