Contentious Probate

Claims against an Executor or Administrator

The Executor or Administrator of an estate is granted the legal power to deal with the deceased’s estate and has the responsibility to distribute the estate in accordance with the deceased’s Will or the rules of intestacy. If an Executor abuses that power, the other Executors or beneficiaries can make a claim against them and apply to the Court for that person to be removed as Executor.

Undue influence

Undue influence means that the testator may have been coerced or pressured into changing the terms of their Will by someone else who could benefit from the changes. The warning signs of undue influence include sudden inexplicable changes or changes which differ from what the deceased had included in previous Wills or had said their wishes were.

Undue influence can be difficult to prove due to the fact that it often happens discreetly, so it will be important to instruct legal advice. A contentious probate solicitor will listen to your reasons for concern and advise you on the likelihood that the Court will consider that undue influence likely encouraged the deceased to change their Will.

Inheritance (Provision for Family and Dependants) Act 1975

The purpose of the Inheritance (Provision for Family and Dependants) Act 1975 is to make sure that anyone who was financially dependant on the deceased is provided for even if the Will or the rules of intestacy fail to do so. For example, unmarried partners cannot will not inherit under the rules of intestacy if their partner dies without a valid Will; they would therefore need to make a claim under the Inheritance Act 1975 for any financial support from the estate.

The Will was not correctly signed

For a Will to be valid, the testator must have signed it in the presence of two witnesses who watch the testator sign the Will before signing the Will themselves. If the Will was not signed following these instructions, it could be invalid.

Lack of Capacity

A Will is only valid if the testator understood the legal implications of their Will at the time it was made. If the testator was suffering from an illness such as dementia at the time they created their Will, they may not have had sufficient mental capacity to make such important decisions and the Will could be declared invalid. The claimant will need to provide medical evidence showing that the deceased was likely suffering from such an affliction at the time that they made their Will.

Lack of Knowledge and Approval

Even if the testator had mental capacity at the time they created their Will, it is possible to make a claim if it is likely that the testator did not understand the contents of their Will or that they were signing their Will at all. This could be the case if the testator didn’t understand English very well or if the person who prepared the Will did not properly explain what each term meant.

Clerical errors in the Will

Clerical errors can happen in Wills when the person who made the Will was careless or did not properly understand the testator’s instructions. Such errors can sometimes be rectified if it is sufficiently clear that the Will does not reflect the testator’s intentions.

If the person who created the Will was a professional Will drafter, it is also possible to make a claim for professional negligence against them.

Fraud or Forgery

Forging the testator’s signature, amending or redacting parts of the Will or creating a fake Will amounts to fraud and can lead to a criminal conviction. An irregular signature is the biggest indicator of fraud, but changes in the writing style of the Will and provisions which differ from the deceased’s previous wishes can indicate fraud or forgery.

How to respond when Probate is contested?

Finding out that a relative is contesting probate can sometimes be unexpected and upsetting, but it is important not to react out of anger. You should instruct legal advice as soon as you know a relative intends to make a claim to find out what your legal situation is and the likeliness that their claim would succeed. A contentious probate solicitor will be able to provide an estimation of the outcome if your relative was to bring their claim and recommend the best way for you to respond.

Instructing legal advice early is paramount to ensuring disputes are resolved favourably, quickly and in a cost-effective way.