After someone dies, their Will may give cause for concern. This could be because someone was left out or inherited less than they feel they should have. It could also be because you do not think that the will itself is actually valid. Regardless of the reason, if you believe you may be entitled to make a claim against an estate or challenge a Will, you really should speak to our Disputed Wills Solicitors soon as you can.
At Bonallack & Bishop, our solicitors regularly act for clients in this area of law, sometimes referred to as contentious or contested probate. We can advise you of your rights and take steps to ensure that they are enforced.
This is a complex area of law and you are strongly recommended to use solicitors with plenty of experience. Our disputed Wills solicitors have dealt with this kind of work for many years with a proven track record of success in both challenging and resisting attempts to dispute Wills.
We also represent clients in respect of other types of inheritance claims, such as where the deceased did not leave a Will.
Thinking of challenging a will? Our highly experienced team offer FREE initial phone advice with no strings attached. Call on FREEPHONE 0800 1404544 now.
What are the grounds for contesting a Will?
There are many reasons for disputed Wills. They include:
· The Will was not correctly drafted
· The document was not properly signed and witnessed
· Undue influence was used to encourage the deceased to make and sign the Will
· Someone poisoned the deceased’s mind against another individual
· The deceased did not have mental capacity
· The deceased did not make reasonable financial provision for someone close to them
· The deceased had made a promise to someone that they did not keep
· A solicitor was negligent in the drafting
· The Will is fraudulent
· The Will has been revoked
· A later Will exists
· Disputes over the estate aministration
· The Will has been hidden or destroyed
The Will was not correctly drafted
Sometimes a Will was not have been correctly drafted. For example, the deceased asked for certain provisions to be made, but they were not included. Or it could be the case that a mistake was made with regard to the signature and execution. These kind of mistakes are particularly common with DIY Wills – when someone attempts to do their own will based on one they found on the Internet or using a “LawPack Last Will & Testament Kit” from W H Smith.
The Will was not properly signed and witnessed
There are very strict rules which apply to the signing of a Will. It needs to be witnessed by two witnesses who should not be beneficiaries or related to beneficiaries.
The witnesses should usually be present together and should see each other sign. They should add their names, addresses and occupations. Nothing should be added to the document or stapled to it.
If it is not properly signed and witnessed, you could end up with a completely invalid will i.e. it’s as if the deceased person never left a will at all.
Undue influence was used to encourage the deceased to make and sign the Will
You may also be able to contest the Will if the deceased was forced or encouraged into making or changing it. This could be a last minute change or an unexpected change which alters the Will to benefit the person suspected of influencing the deceased.
It may be that the deceased was particularly vulnerable at the time of suspected coercion, for example, they were unwell or isolated from others.
It could be that the changes contradict what the deceased had previously said they wanted to happen after their death. Or that it seems unlikely the deceased would have made the Will they did without being unduly influenced.
The person involved in influencing the deceased might be someone in a position of trust, such as their partner, child or carer. To mount a successful challenge in these circumstances, you will need to show that the deceased was not likely to have made this Will if it had not been for that “undue influence.”
Someone poisoned the deceased’s mind against another individual
If someone told the deceased lies about you and the deceased then left you less than they otherwise would have done, you may also have grounds for contesting a will.
This is still often described using a very old-fashioned sounding phrase – “fraudulent calumny.” While it is not easy to prove, you will have to show that:
· You were an existing or potential beneficiary to the deceased’s estate
· One or more false statement were made to the deceased about your character
· The individual making the false representations knew that they were not true or was reckless as to whether they were true (i.e. they didn’t care whether or not what they were saying was true)
· The false representation was made to persuade the deceased to disinherit you or leave you less or leave more to the person making the false representations
· These false representations persuaded the deceased to change their Will
To succeed with this type of claim, you will need to prove your case on what is referred to as “the balance of probabilities.” This means that the court must believe that it is more likely than not that this is what happened.
The deceased did not have the mental capacity to make a Will
Another ground for disputed wills is lack of sufficient mental capacity. Sometimes people making a will simply don’t understand exactly what they are doing. And if they did not have what is referred to as “sufficient mental capacity” that could be another reason to declare invalid.
To have the mental capacity to make a Will, the individual needs to:
· Understand what making a Will means and the implications of signing
· Know the extent of their estate, which means that they know what assets they own
· Know who they can choose as beneficiaries and why they want to leave something to them
· Not have any mental problems that impair their judgment
· Understand the contents of the Will they have signed
To challenge a Will on these grounds, you would need evidence of the deceased’s mental abilities at the time they signed their Will. That’s not always easy.
Click here to find out more about Challenging a Will for Lack of Mental Capacity
Disputed Wills -not making reasonable financial provision for someone close to the deceased
If the deceased did not make reasonable financial provision for a family member or dependant, it may be possible to make an inheritance claim against the estate.
The relevant act is the Inheritance (Provision for Family and Dependants) Act 1975. It provides that certain individuals may be able to ask for reasonable financial provision if they have not inherited anything or have not inherited enough to support them.
Those entitled to make a claim are:
· The spouse or civil partner of the deceased
· The former spouse or civil partner of the deceased, provided they have not remarried or entered into another civil partnership
· Someone who was cohabiting with the deceased in the two years leading up to their death
· A child of the deceased
· Someone whom the deceased treated as their child
· Anyone else whom the deceased was maintaining financially, either wholly or partially, before their death
Being “maintained” includes receiving regular financial payments or less frequent larger gifts of money. It can also include the provision of housing and allowing someone to live in a property without paying rent or paying below market rent.
The court will look at the following issues in deciding the case:
· The claimant’s financial needs and available financial resources
· The needs and resources of anyone else involved, including beneficiaries and other potential claimants
· The obligations and responsibilities that the deceased had towards the claimant
· The size of the estate
· Any physical or mental disability that the claimant has
· Any other relevant facts, which could include conduct, both of the claimant and the deceased
Most claimants can only claim a reasonable financial provision. In the case or a spouse or civil partner however, a larger claim may be considered by the court. The award could be in line with what they might have been entitled to receive in a divorce.
These kind of inheritance claims have become increasingly common in recent years.
The deceased had made a promise to someone that they did not keep
In certain cases, it may be possible to make a disputed Wills claim against an estate if the deceased made a promise that was not kept in their Will. This needs to be more than a simple conversation suggesting an asset will be left to someone. You will need to prove:
· That a promise or assurance was given to leave you something
· You relied on that promise or assurance
· You have suffered a loss as a result
By way of example, if someone was promised the family farm after a death and worked for the farm on this basis, they could have a valid claim. Without the assurance of their inheritance, they could have trained for a different, more highly paid career. It could also be the case that they worked for many years at a salary that was below the market rate because they believed that one day they would be left the farm. This would establish that they have suffered a loss or detriment because of their reliance on the promise.
But to succeed with this kind of claim, you will need solid proof – enough, in the end, to persuade a court of your case if the challenge goes that far.
Disputed wills – where a solicitor was negligent when drafting the document
You may be able to bring a claim for professional negligence against a solicitor if the Will was badly drafted or not drafted at all.
And this involves one good reason for using a solicitor to draft your will in the 1st place. That’s because if they get it wrong, the professional indemnity insurance they must carry should make sure that there is enough cash available to pay any compensation you are awarded. That’s obviously not the case if you draft your own will – and is often not the case if non-qualified will writers prepare your will – as many of them simply don’t have the kind of insurance that could cover this kind of claim.
Our experienced team handle professional negligence claims against solicitors regularly. The team is led by member of the Professional Negligence Lawyers Association.
We can advise you as to whether you have a valid claim for professional negligence and discuss bringing a case against the solicitor in question. You will need to prove that:
· You were owed is referred to as “a duty of care” by the solicitor
· This duty of care was breached, for example, because they did not exercise reasonable care and skill or because their conduct fell below that which a reasonable professional would be expected to provide
· You suffered a loss because of this failure
Examples of professional negligence that could give rise to a valid claim include:
· Not including the deceased’s express wishes in the Will
· Poor drafting meaning that the Will is ambiguous or does not include what the deceased intended
· Not checking that the document had been correctly executed
· Not taking care to ensure that the deceased had mental capacity to make a Will
· Not explaining the financial implications of signing, for example, in respect of tax
· A delay in preparing the document if the deceased died before the Will could be signed
Click here to read more about making a Professional Negligence Claim
The Will is fraudulent
Disputed Wills may be fraudulent. This is where deception, dishonesty or misrepresentation has been used to achieve a financial gain or deprive someone financially.
· The deceased was persuaded to sign a Will without knowing what it was
· The signature of the deceased was forged
· The deceased was given false information to persuade them to make the Will
· A Will was destroyed
You will need to have strong evidence to support allegations of fraud. This could include witness statements, evidence from the deceased’s solicitor and expert reports, for example in respect of a potentially forged signature.
The Will has been revoked
Revocation is simply the cancelling of the will by the person making it. Revocation occurs in a number of ways:
· The Will is destroyed with the intention of revoking it
· A new Will is made
· The person who made it signs a statement saying that the Will is revoked
· The person who made the Will gets married or enters into a civil partnership
If a Will is missing, then it is presumed that the testator, or person who made the Will, has destroyed the Will. To be revoked by destroying it, the testator must intend to revoke the Will and must destroy it themselves or ask someone else to do it in their presence.
In some circumstances, a potential claim could be made if a Will was destroyed but the deceased had not intended to revoke it.
It may also be possible to claim that a Will has been revoked, for example, if the deceased had written down their intention to revoke that will.
A later Will exists
A Will generally includes a revocation clause stating that it revokes any earlier Will. This means that once a new Will is in place, the earlier one is simply replaced.
If there are questions over why the deceased made a new Will or there are unexpected surprises in the new Will, this could raise questions of potential undue influence or fraud. If the new Will should be declared invalid for any reason, the earlier Will generally takes effect.
Disputed Wills – problems with the administration of the estate
Dispute can also arise over the actual administration of a Will – the process of probate where all the deceased person’s debts are paid and assets collected in and distributed according to the will.
These kind of disputes can occur for various reasons, including:
· The person responsible for winding up the estate is not doing so or is moving very slowly
· The person responsible for winding up the estate is not acting in the best interests of the beneficiaries
· There are questions about the conduct of the person dealing with the estate. For example, they are selling assets at less than their worth, misusing estate assets or failing to account to the beneficiaries for the estate assets
The Will has been hidden or destroyed
It is actually a criminal offence to destroy someone’s Will. If you suspect that this has happened, you should seek legal advice.
If the Will is being held by someone and they won’t release it, a solicitor can arrange for a special court order called a “subpoena” to be served on them, requiring it to be produced to the court. This will include penalties for failing to do so.
If there is evidence of the contents of a missing Will, for example, a solicitor’s file from when the Will was written, it may be possible to apply to the court for this to be accepted as evidence of the deceased’s wishes.
Disputed Wills – Warning signs that there may be an issue
If you are worried about the validity of a Will, you may see one or more of the following warning signs:
· A Will made unexpectedly or just before death
· Unexpected provisions in a Will
· Someone has been written out of a Will for no apparent reason
· An unusual addition of a beneficiary, such as someone who has recently come into the deceased’s life and has had influence over them
· A handwritten document
· A Will found in an unexpected location after death, i.e. not at the deceased’s solicitor’s premises, nor at the deceased’s home
· No provision made for someone you would expect to inherit, such as a spouse or child
· A Will has disappeared, but you had been assured that there was one
Instructing disputed Wills solicitors
If you have grounds for challenging a Will or the way that an estate is being dealt with after someone’s death, you are strongly advised to speak to solicitors with plenty of experience in this area. Proving a Will is invalid is usually complicated and it’s really important to get the right solicitor with the right level of experience.
It’s also a good idea to get legal advice at an early stage. Firstly it is usually easier to collect evidence at an early stage – before documents are lost or memories fade. And there are strict time limits for starting a claim. For example, if you wish to make a claim for reasonable financial provision because you relied on the deceased to support you, you only have six months from the date on which probate is granted.
Because of this short and very strict time limit, your solicitor may need to take immediate action to safeguard your claim. They can make an application for what is known as a “caveat” at the Probate Registry in some circumstances. This is a restriction that stops a Grant of Probate from being issued for six months and could safeguard your claim. A Grant of Probate is the legal document that gives authority to the estate’s executor to deal with the deceased’s financial affairs.
Involving experienced disputed wills solicitors early on can and also stop a situation from escalating. We can step in on your behalf to try and resolve matters out of court, which is generally a faster and more cost-effective solution. Application to court is often expensive and slow – it may be necessary but is often the last resort in resolving any dispute.
How to resolve your Wills dispute
These kind of disputes can be long-running and bitter if they are not carefully managed. We always warn clients of the likely effect on friends and family members of this kind of dispute. Sometimes it splits families permanently – almost certainly the very last thing the deceased would have actually wanted.
We always take steps to try and deal with these kind of disagreements early on so that you can move on from this difficult situation after the death of a loved one.
Sometimes just a carefully-worded letter from you solicitor can produce an agreement.
Where this is not the case, we can enter into negotiations on your behalf to try and find common ground. If this fails, we can advise you on methods of alternative dispute resolution such as mediation. This involves the use of a neutral person who will work to try and find a solution without the need for a court case.
Mediation is usually faster than litigation and almost always less costly. It can also help prevent a relationship from deteriorating further. We can prepare your case for mediation where necessary and ensure that you have the support and representation that you need.
Litigation for Disputed Wills?
Where it’s simply not possible to deal with a dispute out of court, we can prepare a robust case to put before a judge.
The litigation process involves the following stages:
· The pre-action stage when documents are exchanged and the case is stated
· The issuing of the claim, which could be followed by a defence and in some cases a counterclaim
· A case management conference and a costs conference, where the court sets out a plan for how the case will be dealt with
· Disclosure of documents, to include exchange of witness statements and expert evidence
· The final hearing
It is still possible to reach a negotiated settlement at any point up until the outcome of the final hearing.
And do be aware of the risks and litigation –the party that loses will often be liable for the reasonable legal costs of the other side.