Contentious Probate

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There is often an expectation of entitlement to inherit wealth on the death of parents and other relatives. The increase in the value of property over recent years has resulted in more parties seeking the Court’s assistance in setting aside Wills when they are disappointed with the lack of provision made for them.

THE WILL

To be valid, a Will must be in writing and signed by the Testator in the presence of two or more witnesses present at the same time. The Testator must have sufficient capacity to understand that he is making a Will and what its effect will be, what assets he has to dispose of and what claims he ought to consider.

PROBATE CLAIMS

In summary, Wills can be challenged on the following bases:

• Lack of testamentary intention
• Lack of due execution
• Lack of testamentary capacity
• Lack of knowledge or approval
• Undue influence
• Fraud and forgery
• Revocation

CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Testators should give careful consideration as to who will benefit from their estate to avoid claims under this Act. Although a Testator is free to leave his estate as he wishes, a Court can make provision for the following parties if they make a claim, usually within six months of the date of a Grant of Probate, although in certain circumstances the Court may give leave to issue out of time;

• A surviving spouse or Civil Partner.
• A former spouse or Civil Partner who has not remarried or entered into another Civil Partnership.
• A child or anyone treated as the child of the family by the deceased.
• A cohabitee who was living with the deceased for the two years immediately preceding the death.
• Anyone who was a dependant of the deceased.

Surviving spouses or Civil Partners can seek reasonable financial provision, while other claimants are limited to reasonable financial provision for their maintenance. The Courts will take into account various factors in deciding whether or not to make provision for a claimant.

CLAIMS AGAINST EXECUTORS

Executors have a duty to administer an estate in a reasonably timely manner, which will include applying for a Grant of Probate if necessary, calling in the assets of the estate, making payment in respect of any debts and then distributing the net estate according to the terms of the Will. While there is no obligation on an executor to distribute any assets in the year immediately following the Grant of Probate, if the executor is failing to progress the administration of the estate at all, treating beneficiaries differently or refusing to make a distribution to a beneficiary it may be possible to seek the removal of the executor.

Where executors themselves are concerned about a dispute between beneficiaries or any other issue, they can seek direction from the Court as to how to proceed with the administration of the estate.

OTHER ISSUES

The interpretation of Wills, most commonly homemade Wills, can require the Court’s assistance and the Court has the power to construe the terms of a Will. The Court can also rectify Wills in very limited circumstances such as where there has been a clerical error.

Our specialist Contentious Probate Solicitors can help you with any of the above issues. As most cases involve family members it is almost always appropriate to consider alternative dispute resolution rather than the issue of Court proceedings in the first instance. Our solicitors regularly arrange mediations where parties, assisted by their legal representatives, can try and reach a settlement of their claims and thus avoid the risk and cost of Court proceedings.