Contested Probate & Disputed Wills

Contested Probate and Disputed Wills Solicitors

Probate is generally an emotional and difficult process for everyone involved and can become more difficult when the deceased’s loved ones cannot agree on how the deceased’s estate should be distributed.

In order to avoid costly legal battles and lengthy Court proceedings over contested probate or disputed wills, it is important to seek legal advice as soon as possible. Our probate solicitors can help.

What is contentious or contested probate?

Contentious or contested probate refers to any disputes in connection with the administration of the estate of a deceased. There are a broad range of circumstances in which probate may become contentious and probate disputes can lead to lengthy legal battles.

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.

Reasons for Contesting a Will

A Will is supposed to clearly set out how the deceased wanted their estate to be divided after they pass away. If the deceased’s beneficiaries do not think the Will is a true representation of the deceased’s wishes, they may contest the Will on certain grounds:

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.

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.

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.

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.

To be eligible to claim, you will need to have been a close enough relation to the deceased. Eligible relations include:

  • The spouse or civil partner of the deceased
  • The unmarried partner of the deceased (provided you were cohabiting with the deceased before they died)
  • A child of the deceased
  • The deceased’s former spouse (provided you have not remarried or begun cohabiting with a new partner)
  • Someone otherwise financially maintained by the deceased

Trust Disputes

Many testators, particularly those with a lot of assets, set up a trust to better manage the distribution of their assets to their beneficiaries. The trustee of a trust is responsible for managing these assets until they can be transferred to the beneficiaries and must always act in the best interests of the beneficiaries.

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.

What is the time limit for contentious probate?

The time limit will depend on the sort of claim you are making. If you are making a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, you will generally have only 6 months from the date on which the grant of probate or letters of administration were granted.

If you’re contesting a Will because you feel it is invalid, there is technically no time limit in which you have to have brought a claim – however, any delay in bringing a claim after finding out the Will could be invalid will be questioned by the Court and could be a detriment to your case. It will also be harder to recover any funds that would have been due to you the longer you wait to bring a claim, so it is best to take legal advice as soon as possible.

Do we have to go to Court for a contentious probate matter?

There is no need to go to Court at all to resolve a contentious probate matter and it is best avoided where possible. If all parties can agree to change the terms of the Will, a deed of variation can be created which amends some of the terms of the deceased’s Will, for example to include someone as a beneficiary who was previously left out of the Will.

Alternatively, the parties can agree to a settlement outside of Court, which eliminates the need to attend a hearing and will likely significantly reduce both parties’ legal costs. This does require both parties to be willing to negotiate and compromise.

Why choose Starck Uberoi Solicitors?

At Starck Uberoi Solicitors, our contentious probate solicitors combine the expertise of our litigation and private client departments to provide effective and comprehensive legal advice, so our clients can make decisions with confidence. We understand how stressful probate disputes can be for everyone involved and always aim to achieve a favourable outcome on behalf of our client without needing to go to Court – however, if going to Court is the only option, our clients will receive the best legal representation possible shaped by our extensive experience.

To book an appointment, please call 020 8840 6640 or email solicitor@starckuberoi.co.uk. Our offices are located in Brentford, Ealing, Richmond, London Belgravia and Canterbury, all within easy reach by public transport. Our partner, Raminder Uberoi, can also provide a Notary Public service at any of our London offices.

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Contested Probate & Disputed Wills. Frequent Questions

What can I do if I can’t find a Will for a deceased person?

When you create a Will, you should always make sure your executors know where the Will is kept. Unfortunately, many testators don’t, which can cause complete chaos.

If you can’t find the Will after searching the deceased’s house, it may be worth speaking to the solicitor or will writing company which prepared their Will, if the testator used a professional will writing service. Many will writing companies offer secure Will storage as part of their service and also take digital copies of the Will, so you may be able to retrieve a copy from them. They also still have records of the deceased’s instructions and previous Will drafts which could be helpful in the event that the executed Will can’t be found. If a solicitor prepared the Will and the law firm has since closed down, you can ask the Solicitors’ Regulation Authority to help you find out where the Will would have gone to.

If that does not work, you can hire a Will search business to find the lost Will for you. They will contact solicitors and Will writers all over the country to check their Will storage and will also check the National Wills Register for you to see if the deceased registered their Will.

Finally, if the Will seems to truly be gone, you can still apply for probate if the Will cannot be found – however, this is best kept as a last resort because the estate will then be administered as per the rules of intestacy (which are used when the deceased did not leave a valid Will) and the deceased’s wishes may not be properly carried out.

In some circumstances, a draft or digital copy of the deceased’s Will may be accepted by the probate registry as a valid Will for probate.

What happens if someone destroys a Will?

That will depend on the circumstances in which the Will was destroyed. If the testator intentionally destroyed the Will themselves, this will count as a revocation and any remains of the Will shall be considered invalid. The destruction must clearly be intentional – a small tear or a stain would suggest that the Will was damaged by accident and the Will would still be considered valid.

If someone else destroyed the Will maliciously, this is a criminal offence and should be reported.

Alternatively, if the Will appears to have been damaged or destroyed by mistake, the Will may still be valid. As long as it is still possible to ascertain what the Will is supposed to say, the Will can still be accepted. If it is not possible to work out what the Will is supposed to say, a copy of the executed Will or a draft copy can sometimes be used if the terms of the original Will seem to be the same.

Who pays legal costs in contentious probate matters?

Generally each party will pay their own legal costs, but you can make an application for your legal costs to be paid by the other party. Whether the Court chooses to allow you to make this application is at their discretion and will depend on the circumstances of the matter. Our contentious probate solicitors will be able to advise you on whether an application for costs is likely to succeed and help you make a strong application if so.

Is it worth contesting a Will?

Finding out that you have been taken out of a Will unexpectedly or feeling that the executor is not properly fulfilling their role is often deeply upsetting so it is reasonable to consider contesting the Will. However, contentious probate can be an expensive and lengthy process, so it is important to consider whether the amount you could inherit is likely to be greater than the cost of bringing a claim.

What is a Caveat and do I need one?

Caveats are used to stop an application for probate (or letters of administration if the deceased died without a Will) from being approved for a period of six months to give parties sufficient time in which to bring legal proceedings.

Contentious probate can take a very long time to resolve and making a claim against an estate after probate has been granted makes it much harder to claim back what you are due. Therefore, putting a Caveat is often a good idea to prevent the Executors or Administrators from beginning distributing the estate until any disputes are resolved. The Probate Registry does charge a fee of £3.00 for the application for a Caveat and Caveats can be renewed if the dispute hasn’t been resolved within six months.