Wills, Probate & Contentious Probate

The team at Blanchards Law has considerable experience representing clients in contested probate matters. We refer the drafting of Wills, trusts and LPAs to trusted advisors. We understand how stressful it can be when the terms of the Will are not as expected, or there are disagreements between those inheriting and those in charge of administering the estate or looking after the various assets.

Blanchards Law are experts at resolving disputes, including:

• Dealing with an executor who has mismanaged the estate
• Disagreements between beneficiaries.

We can also help you contest probate if there is no Will and you want to challenge how the estate has been divided up. It is important to know that a person’s legacy is being handled in a way that is fair to those inheriting and doesn’t damage its value.

Problems with how their estate is being handled can make it even harder. If you feel that a loved one’s estate is not being managed properly, we can help you contest probate.

Contentious probate refers to any dispute about how a person’s estate is administered after their death.

Estate disputes and contentious probate issues can be stressful and are often complex.  Whether you are an executor or a beneficiary, our experienced team of contentious probate solicitors can help guide you every step of the way.

Can we help you? Please call us on 0333 344 6302 or contact us through our enquiry form. All initial enquiries are free and without obligation.

What is a last Will and Testament?

A last Will and Testament allows a person to decide exactly what will happen to their money, property and possessions when they die. It may also include care instructions for any children aged under 18. As a formal legal document, it must be witnessed by two people and signed by the Will maker, for it to be considered legally valid. The process of confirming the validity of a Will is known as probate.

People can write their own Will, though if it involves complicated assets or overseas property then it is always best to seek the advice of an experienced legal professional. A Will must also be stored safely.

In order for a Will to be considered valid, it must comply with Section 9 of the Wills Act 1837, which says:

• The Will must be in writing and signed by the Testator (person to whom the Will applies);
• If the Testator is unable to sign, it must be done by someone else who has been directed to do so by the Testator and in their presence;
• The Testator must have intended the Will to be valid when signing it;

The Testator must sign their Will in the presence of two witnesses present at the time. The witnesses must also sign the Will

In the event that a person does not submit a formal Will to a solicitor then the law will then make an informed judgment on the administration of their estate, and decide which people or parties are due to inherit their money and assets. This legal term for this process is “intestacy”. The rules of intestacy is a hierarchy of relatives detailing who gets what from an estate.

Can a Will be contested?

Yes, although the person contesting the Will must be a spouse, child, cohabitee or a person who is expressly mentioned in the Will, or a previous Will. That person (“the Claimant”) must also ensure they have valid legal grounds to contest a last Will and Testament successfully.

The grounds for appeal include the following:

• Lack of testamentary capacity
• Lack of due execution
• Undue coercion
• Fraud

Contentious Probate

Disputes over a deceased person’s estate are unpleasant, but sadly they do happen and it is vital you have the experts on your side. Blanchards Law have a team of experts with a wealth of knowledge in matters such as this.

If a member of your family, close friend or loved one passes away and you believe there is an apparent error within the Will they have left behind, or that it has not been correctly implemented in some way, then you may have valid cause legally to contest the contents of their Will in court.

The process of contesting a Will is a legal minefield, and is not designed for the non-legally qualified, this makes expert legal advice essential to understand your situation before committing to formal legal proceedings.

We at Blanchards Law  understand that this is a sensitive matter, often involving close family and loved ones. At every stage we will strive to make sure your claim goes as smoothly as possible and that it reaches the best possible resolution, in the quickest time possible

Whether you are making or defending a dispute against a Will or Estate, our experienced and friendly team can help.

How long do I have to contest a Will?

It is essential to act as swiftly as possible when contesting a Will. There may be a strict time period in which a Will is liable to be contested from the date of death, the grant of probate or from the issue of letters of administration.

Depending on the basis of your claim, different limits on how long you have to make a challenge apply. The most common types of claims and the allotted time period in which they must be made are as follows:

• Inheritance act – Six months from the issue of the grant of probate
• Claim for maintenance – Six months from the issue of the grant of probate
• Beneficiary making claim against the Will – 12 years from date of death
• Rectification claims: 6 months from the date of grant
• Fraud/claiming against an executor for appropriating estate assets: No time limit applies

As you can see, some of these claims need to be made very quickly following the grant of probate. However, even where the time limit is greater, it is still advisable to move as quickly as possible.

The main reason for this is because the longer you leave it, the harder it becomes to trace assets. This increases your costs and time and could even result in some assets not being found.

Contesting a Will:

If you are considering the option of contesting a Will in the UK, for whatever reason, then you should seek legal advice as a matter of urgency to confirm whether you are able to submit a claim within the time constraints. Contesting a Will after probate has been granted is possible, though it is always preferable to raise a claim beforehand. This is because it’s easier to notify the executor(s) of the Will of a claim before anything is distributed. If a Will may be invalid, a ‘caveat’ can be entered against the state to prevent a Grant of Probate being issued.

Contentious probate matters can add uncertainty to an already difficult time; it’s also a topic around which there is a lot of confusion. English law asserts the importance of respecting the wishes of the person who has died – even when this is not necessarily what family and friends are expecting. An unexpected or odd distribution of the estate, as long as it’s in accordance with what the person who has died wanted, isn’t normally grounds for challenging a Will.

When a Will is contested in the UK, the executor(s) normally take a neutral approach so they are not responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly.

You need to take is to consider your relationship to the deceased. Typically, Wills are challenged by close family members such as spouses or family members, but this is not always the case.

In any case, not just anyone can challenge a Will. For example, being a close friend does not automatically mean you can make a challenge. The following groups of people might be able to make a claim:

• Family members: Those who are blood relatives or a spouse
• Dependants: Those who relied on the deceased for financial support or accommodation.
• Beneficiaries under the Will: Those who should have received an inheritance as documented in the Will but did not.
• Beneficiaries under an earlier Will: Those who stood to receive an inheritance under a previous version of the deceased’s Will.
• Creditors: Those to whom the estate owes money.
• Previously promised: Those who were previously promised an inheritance by the deceased, whether in writing or verbally, but not included in the Will.

You can challenge a Will on behalf of someone else. This is most commonly seen when a parent challenges a Will on behalf of a child of the deceased.

A caveat

Once a solicitor has validated your claim, you are then able to submit a formal claim, known as a ‘caveat’, to the Probate Registry office. This means that an official probate cannot be completed and issued – and therefore the deceased’s money and estate cannot be distributed – without first notifying the claimant and resolving the dispute. The caveat lasts for six months, though it can be renewed where applicable.

Court action

Many people choose to settle a contentious probate claim before it goes as far as a trial – otherwise it can be over a year before your case is heard in court In the event that an agreement cannot be reached during the caveat stage then a formal court claim may be then submitted.

What to do if a Will is contested against

If you are a family relation or friend to the deceased, or a direct beneficiary from their Will, and are therefore to deal with a formal claim made by a claimant that the Will is invalid then it is equally important to have an in-depth understanding of the above information and seek legal advice as soon as possible.

Regardless of your situation, if you are looking to contest a Will after probate in the UK, or are dealing with a contentious will,  then we are here to help with friendly, expert legal support and advice.

Making a claim in contentious probate

Once you have considered whether you will be able to make a claim, the next step is to identify whether you have a legal basis to challenge the Will.

There are generally two bases for contesting a Will; either the Will itself is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death.

There are a few grounds on which you may be able to question whether the Will is valid. In legal terms, the grounds for contesting a Will are:

1. lack of testamentary capacity
2. undue influence or coercion
3. Wills Act 1837
4. forgery and fraud
5. Reasonable financial provision the Inheritance (Provision for Family and Dependants) Act 1975

Testator Incapacity – the person who has died did not have sufficient mental capacity at the time the Will was drawn up

In order for a Will to be valid, the Testator must be of sound mind. This means they must have the mental capacity to understand that they are making a Will and the impact it will have. The law says that, at the time of drawing their Will up, the person must be of “sound mind, memory and understanding.”

They must also:

• Understand the nature and value of their estate;
• Understand the impact of including or excluding certain people;
• Not be suffering from any illness or disorder that will inhibit or influence their views.
• Understand what they are doing and what effects those actions will have
• Understand the full extent of what they are distributing
• Be able to appreciate the effects of including or excluding certain people from their Will
• Not have a ‘disorder of the mind’

Undue influence or Coercion

The sad reality is that cases of coercion do exist, in which a Testator is put under undue pressure when making or amending their Will. If you suspect that this has taken place, you will need to show evidence of a high standard to prove “undue influence”. To prove this you need good evidence to show

• Someone else interfered with the creation of the Will, meaning they exerted undue influence on the distribution of assets against the individual’s desire.
• Someone coerced or forced someone into changing their Will for the coercer’s benefit. This is called undue influence. It can be very hard to prove.

Someone exerting undue influence can include physical violence, purposely giving inaccurate information, or verbal bullying, but it can also include asking incessantly – what matters is that their wishes overpowered those of the person who has died.

It can be particularly difficult to demonstrate that a Will is invalid because of undue influence; exerting pressure (like “but we’re family”) or appealing to moral reasons (like “remember all the things I have done for you”) to be included is not normally considered undue influence.

If you suspect coercion has taken place, it is important to seek legal advice to fully understand what you need to do to prove it. While you may be suspicious of that large gift left to someone, that in itself is not proof.

Forgery

Clearly, a Will cannot be valid if any part of it has been forged. This includes the obvious, such as the fraudulent signing of the Testator’s signature by another person.

Wills Act (1837)

For a Will to be valid it must comply with the Will Act (1837):-

• Be in writing and signed by the person making the Will.
• The person making the Will must have signed it with the intention of creating a valid Will.
• Two people must witness the Will maker’s signature. Those witnesses must either be present when the Will maker signs or, the witness must be told by the Will maker, that is his/her signature.

The witness then either signs having seen the Will maker sign, or signs in the knowledge that it is the Will maker’s signature on the document and that the Will maker did signed it, with the intention of creating a valid document

If there is evidence that any of these parts have not been complied with the Will could be deemed as invalid.

The Will is a forgery or is fraudulent

If either the entire Will or the signature of the person who made the Will is forged, or the content of the Will is fraudulent, then the Will is invalid. A fraudulent Will is one that includes wishes against the person who has died; it is similar to undue influence but does not require coercion. These grounds can also include beneficiaries (someone who would or does benefit from the Will) or non-beneficiaries destroying versions of the Will for their gain.

The Will has not been executed properly, meaning the estate has not been distributed in accordance with the person’s wishes

Like any element of the law, every challenge to a Will is unique and comes with its own legal strategy for success. With time being such a factor when contesting a Will, moving quickly to gather advice you can trust is essential. If you are considering contesting a Will or are in the process of doing so now, get in touch to learn how Blanchards Law can help you.

Can we help you? Please call us on 0333 344 6302 or contact us through our enquiry form. All initial enquiries are free and without obligation.

Reasonable financial provision the Inheritance (Provision for Family and Dependants) Act 1975

It may be possible to seek reasonable financial provision if you were dependent financially upon the person who has died but no such provision has been made in the Will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act also sets out who is entitled to make a claim on these grounds; normally, spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person. Family members or people who are financially dependent on the deceased might be able to make a claim if they have not been left anything or if they don’t think they have been left a reasonable share of the estate. Even if a Will is valid and has been signed correctly it might not give the assets to the people who need them most. An inheritance Act 1975 claim can help to put this right.

Actions to remove executors

Contentious probate issues can arise between co-executors or administrators (collectively known as “personal representatives”) or between beneficiaries and executors at any stage of an estate administration or probate. This can involve disputes over the value of assets, the suitability of executors, probate fees and any other concerns over an executor’s actions. Our contentious probate solicitors have experience in dealing with all manner of executor disputes including replacing or removing executors.

Claims by or against the estate

As an executor, you stand in the shoes of a deceased person. This means that any claims relating to the deceased can be brought by or against you.  That carries with it certain risks and duties; for instance, it you might need to consider bringing a claim if it’s in the best interests of the estate and its beneficiaries to do so. Similarly, you might have to defend any claims brought against the deceased.

Blanchards Law have the expertise to help, whatever the nature of your dispute, whether you are making a contentious probate claim or defending one.

Please note that we are only currently taking on contested probate matters, where upon the death of a person, there is a dispute as to the division of assets. Therefore, if you require a Will to be drafted or amended or matters in relation to a Trust to be resolved, we would be happy to refer you to one of our trusted partners to assist you.