Contentious Probate Solicitors

It is important to understand what contesting a Will actually is before being able to actually contest the Will. By seeking to contest a Will you are seeking to challenge the validity of the Will by suggesting that either one of the following has taken place: –

1. The deceased person who made the Will did not have the capacity at the time of making the Will to make the Will.
2. It was impossible for the deceased person at the time the Will was executed to have understood the contents of the Will.
3. It appears evidence that the deceased person was coerced into making the Will.
4. The Will appears to have been fraudulently drafted.

Alternatively, you may be seeking to contest the Will under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the Will does not provide you with reasonable financial provision and you were in some way during the deceased’s lifetime maintained financially by them.

If either of the above applies to you then you should do the following: –

1. If possible enter a ‘caveat’ with the District Probate Registry to stop an application for either letters of administration or a grant of probate being approved. A caveat is usually in place for 6 months and can be extended which gives you the opportunity to explore the grounds you have to contest the Will. This cannot go on indefinitely and executors/personal representatives can lodge a warning at the District Probate Registry where you will then be asked to either rescind your caveat or make an appearance at court to substantiate why you believe the caveat is necessary.
2. Correspond with the executors of the Will directly or indirectly via solicitors to obtain a copy of the Will and review its contents. Although, a copy will only usually be released if you are named as a beneficiary or are the parent/guardian of a child who is set to inherit.
3. Make an application to the court. This is usually a last resort to mitigate legal fees but nevertheless is an option available if all other avenues have been exhausted.

When the question arises as to the validity of a Will, then there are few grounds to rely on legally and those grounds are as follows: –

1. Lack of testamentary capacity

At the time of drawing up and executing the Will, the deceased, in accordance with law, must have been ‘of sound mind, memory and understanding’. Essentially, this means that the deceased must have been able to understand what they were doing at the time of making the Will, understand their estate and what they would be distributing to who, be able to understand who they were including or excluding from their Will, and not have a disorder of the mind.

2. Undue influence of coersion

This is where it is believed that someone put pressure on the testator/testatrix to distribute their assets in a certain way and usually to their benefit when the person was making their Will. This unfortunately can be extremely difficult to prove, but in the event that a Will was drafted by a solicitor, the solicitor should have detailed notes on the instructions provided by the deceased and how those instructions were given.

3. Lack of knowledge and approval

To be valid a Will must have been understood by the testator/testarix and they must have themselves approved the contents. If the Will has been executed correctly and signed by the testator/testarix in the presence of two independent witnesses then it is usually presumed that knowledge and approval has taken place. However, in the event that the deceased person had a speech impediment, was illiterate, was blind or paralysed then the court may well require evidence to prove that the testator/testarix had sufficient knowledge and approval.

4. Non compliance with Section 9 of the Wills Act 1837

For a Will to be valid in accordance with S9 of the Wills Act 1837, it must be each of the following: –

1. The person making the Will must be 18 years or older.
2. The person making the Will must make the will freely and voluntarily and without any pressure from another person.
3. The person making the Will must be of sound mind and with full capacity at the time of making and executing the Will.
4. The Will itself must be in writing.
5. The Will itself must be signed by the person making the Will (the testator/testatrix) in the presence of two independent witnesses who are not named in the Will or family members.
6. The Will itself must be signed by the above two independent witnesses who attest the Will to confirm that they have witnessed the Will being executed by the testator/testatrix.
7. Forgery or Fraud

If it can be determined that the Will of the deceased is fraudulent, either by way of the signature being forged or the contents being fraudulent then the Will is deemed invalid. Sometimes, it may be necessary to appoint a handwriting expert to determine whether or not it is more likely than not that the signature is that of the deceased.

There are many reasons why people wish to make a claim against a deceased’s persons Will, but, there are only two reasons which are considered valid in law. Those reasons are as follows: –

1. There is cause to believe that the Will is invalid; and/or
2. The Will fails to provide ‘reasonable financial provision’ for a family member or a person who was ‘financially maintained’ by the deceased before their death.

If you believe that the Will of the deceased may well be invalid then it is important to explore what makes a Will valid in the first place. In accordance with Section 9 of the Wills Act 1837 (see ‘Grounds for contesting a Will’ FAQ above).

If you believe that the Will is not executed in accordance with S.9 of the Wills Act 1837 then you may well be able to contest the Will.

Secondly, if you believe that the Will is valid but you have received no provision from the deceased within the Will despite being financially reliant on them in some way, it may be possible to contest the Will and is considered a valid reason to consider contesting the Will.

The success rate of contesting a Will, will very much depend on the reason why you are contesting the Will and whether you have the legal grounds to bring a claim. In most cases, the main reason why people contest a Will is because they believe that at the time of making the Will the deceased did not have the requisite capacity.

The reason why you wish to contest a person’s Will is not necessarily the main point to consider, the main focus is that you must have the proof required in order to make a claim first. The outcome of any claim being successful very much depends on you first satisfying the criteria of who and why you can make a claim and then following that up with the necessary supporting information to your case.

The more information and proof that can be gathered to support a claim will ultimately directly correlate to likely success.

It is always advisable, before making any claim, to seek the specialist advice of a solicitor. A solicitor will be able to advise you on your likely success rate and what is required to support your claim.

Before determining whether or not to bring a claim it is essential that you are certain you are eligible to contest a Will. Below you will find a list of people entitled to make a claim against a Will: –

1. Family members

Blood relations are included within the Inheritance (Provisions for Dependants) Act and are therefore able to claim that a Will is invalid provided that they provide proof that the Will is invalid.

If you are not a blood relative but a relative by way of marriage then your relationship with the deceased will be taken into account and you may have some legal protections offered to you but only in narrowly defined circumstances; those being that you were maintained by the deceased financially in some way before they died.

2. Beneficiaries

In the event that you are set to inherit from a Will and the executors are not releasing the sums owed to you or items given to you then you will have grounds to make a claim provided the Will is valid. This scenario is usually considered a breach of the executor’s fiduciary duties to the estate.

As a beneficiary you may also wish to contest your share of the estate if it is unequal to another beneficiary’s and you feel that it is unfair, for example two siblings inheriting from their parents’ estate unequally.

3. Beneficiaries of earlier Wills

You may be entitled to contest a Will if you can prove that you were a beneficiary in an earlier Will of the deceased and you can provide a valid reason as to why you should still be a beneficiary. For example, if a married couple divorced and the ex-husband was still paying to the ex-wife child maintenance but the ex-husband dies leaving no provision for the ex-wife for the purposes of assisting in the upbringing of the children then it would be reasonable to seek to contest the Will. It is important to remember that any gift to the children is for the children when they attain adulthood and is not for the purposes of assisting in raising them.

4. Creditors

If the deceased person owes money to you then you are entitled to claim back those funds from the deceased’s estate provided there is clear evidence that the funds are owed to you.

5. Broken Promises

This is a very complex area of law because it is very difficult to prove that the person who died promised you inheritance when their Will does not reflect that. If this applies to you then seeking legal advice sooner rather than later is always advised. Ultimately, you will need to prove that the promise was made to you and that you are at a detriment with the promise being broken.

6. Financial Dependants

If you are not related to the deceased person but were in some way financially dependant upon them, then it may be possible to make a claim against their estate, especially if they assisted you with housing or made significant financial contributions to you on a regular basis. However, be aware that if this applies to you, a claim must be made within 6 months of the date that Probate is granted.

It very much depends on the type of claim you are making as to the time limits involved in bringing your claim.

If you are bringing a claim for reasonable financial provision (usually termed Inheritance Act claims), then you must make this claim within 6 months from the date at which either the grant of probate was granted or the letters of administration were granted. In the event that you seek to make a claim after the 6 month period, then you shall need to first seek the permission of the court which can be a lengthy and costly process.

In the event that there has been an error made within a Will that is purely clerical, then it is possible to apply to the court for recitifcation of the Will. In the event that this is required, you again must make this claim within 6 months of the grant of probate being issued.

All other claims against an estate are governed by the Limitation Act, in particular Section 22 which allows you to make a claim within 12 years of the date of death. However, if you think that you may be able to bring a claim against a deceased person’s estate in some way, it is always better to take action straight away rather than wait.

There is no limit imposed if the claim relates to fraud.

It is possible to contest a Will after probate has been granted but it is always best to deal with any potential claim as quickly as possible as it is often much more difficult to recover anything from an estate when the assets have already been distributed and dispersed.

It is possible when making a Will to include a no contest clause which is also known as a forfeiture clause. Such a clause stipuilates that a beneficiary who wishes to contest the Will, will ultimately forfeit their inheritance.

However, it can still be determined that the Will is invalid which will of course invalidate the no contest clause. For example, if the Will doesn’t comply with S9 of the Wills Act 1837 then the Will is invalid and so is the no contest clause. If this is the case, the earlier Will of the deceased will apply or alternatively, if there is no earlier Will, the estate will pass via the Rules of Intestacy.

A forfeiture clause within a Will is a very useful clause especially where the tesator/testatrix wishes to leave nominal sums to children for example which is usually more effective than leaving a person out of your Will entirely. However, it is important to understand that a no contest clause cannot always irradicate the possibility of someone raising a challenge. In the event that there are concerns as to the validity of the Will then this should always be taken into consideration even where a no contest clause is present.

It is also important to understand that a no contest clause does not irradicate someone being able to make an Inheritance Act claim if they have grounds to make such a claim by being financially dependant on the deceased.

Contesting the validity of a Will and bringing an Inheritance Act claim can be very expensive simply because of the amount of investigatory work involved prior to issuing court proceedings.

It is important that you are aware that if you decide to bring an Inheritance Act claim before the court then the court have discretion as to costs and the loser may be ordered to pay the winner’s costs. Further, as a general rule, costs of proceedings are to be paid privately by the parties and are not necessarily borne from the estate.

The exact amount that it will cost to contest a Will largely depends on when the dispute settles and if the court’s assistance is required.

If the dispute is settled following on from minimal correspondence with the other party involved then costs are likely to be in the region of £1,500 – £5,000 plus VAT. However, if some form of alternative dispute resolution (ADR) is engaged then you can expect costs to be anywhere between £5,000 – £15,000 plus VAT.

If ADR is not successful and no agreement has been made between the parties, the only other option available to you is to seek remedy from the court. The cost of proceedings can vary depending on the complexity, but in most cases you can expect costs to escalate to somewhere between £15,000 – £25,000 plus VAT which can increase beyond that point if the matter is particularly complex.

Given the costs involved in these types of matters, it is always important for a specialist contentious probate solicitor to assess the merits of your case straight away and to engage in positive negotiations as soon as possible in order to try to minimise legal costs.

In most cases, any dispute will settle before the claim has to go to any trial at court. Usually, this is because it can take up to 1 year for a case to be heard in court depending on the claim and it is also very costly.

It very much depends on the type of claim as to the likely timescales involved. For example, if there was a simple clerical error within a Will that you are seeking rectification of then it is likely that this will be much quicker to finalise than a claim for reasonable financial provision would be under the Inheritance Act.

It is usually adviseable for alternative dispute resolution (ADR) to be used where appropriate as this can speed up the finalising of any disupute by encouraging the parties to reach an agreement without the need of going to court and engaging in costly, lengthy and protracted proceedings at court.

There are multiple forms of ADR and these are: –

1. Mediation;
2. Discussion and negotiation between the parties; and
3. Asking an independent third party to comment of the likely success of your claim.

It can take some time to prepare a case as there are multiple stages involved in contesting a Will and these are detailed below: –

1. Establish whether or not you have grounds to contest a Will.
2. Check the time limits to bring a claim and check that the permission of the court is not needed to being a claim if you are bringing a claim out of time.
3. Consider entering a caveat at the District Probate Registry to stop a grant of probate or letters of administration being issued.
4. Consider whether ADR is appropriate in your circumstances.
5. Ensure that full compliance with the ACTAPS Pre-Action Protocol is adhered to.
6. If all other attempts at negotiation have failed, considering issuing court proceedings.

Each case is different, carrying its own complexities, and therefore it is impossible to provide an approximate timescale until the full details of each case have been explored. Depending on the complexities involved at the outset, a solicitor should be able to provide a rough timescale through to conclusion of the case, but this is not a strict rule.