Contentious or contested probate (also referred to as challenging a will) is unfortunately becoming more widespread. In particular, wills being contested in the High Court are increasing rapidly – the number of cases rose from 227 in 2018 to 368 in 2019 – a 62% rise in a single year. However estate disputes and contested probate cases are often complex, and you need to make sure that you choose a solicitor specialising in this area of law.
In addition to our probate work, we have a team of solicitors specialising in both bringing and defending contested probate cases both locally throughout Wiltshire, Hampshire, Somerset and Dorset and nationally throughout England and Wales from our offices in Salisbury, Andover, Fordingbridge and Amesbury.
Thinking of contesting probate? Call our highly experienced team on FREEPHONE 0800 1404544 for FREE initial phone advice – no strings attached.
Contested Probate – please think twice
Please think carefully before contesting probate. Quite apart from the stress and financial cost an estate dispute claim brings, it often causes irreparable damage to family relationships.
Why should I contest probate?
There are a number of reasons for disputed wills including;
- Professional negligence claims arising out of wrongly drafted wills.
- Inheritance disputes – when dependants feel that they have not been made ‘reasonable financial provision’ from the estate (under the 1975 Inheritance Act). Click here to read more about making an inheritance claim
- Claims that the will is fraudulent or was made under duress – see below.
- Claims that the will is not actually the last will of the deceased.
- Arguments that the deceased lacked sufficient mental capacity when making their will.
Click here to find out more about Challenging a Will for Lack of Mental Capacity
- Claims against or between personal representatives or trustees. Click here to read more about executor disputes
- The will has been lost.
How our solicitors can help you in a contested probate claim?
We can advise you at an early stage how likely the contested probate claim is to succeed.
Contested Probate – How Much Time Do I Have?
It’s important to see a solicitor who specialises in this area as soon as possible. Time limits for will contest cases are set out in the Limitation Act 1980 and vary considerably according to the type of claim. Time limits in bringing any type of contested will or inheritance claims are, however, strictly enforced. Therefore it is critical that specialist legal advice is obtained as soon as possible.
In general, however, the principal time limits for bringing any contested probate claim are as follows :-
• For a beneficiary claiming against an estate – 12 years following the date of death of the testator
• For a dependency claim for maintenance under the Inheritance Act – 6 months from the grant of probate itself
• For will fraud -there is no time limit in cases of fraud involving wills
Our advice is simple. Don’t risk losing your right to make a claim. Get specialist legal advice ASAP. Leaving it too long could mean that you miss out on your right to claim compensation entirely.
If you suspect that a will is fraudulent, you should seek specialist legal advice as soon as possible after your bereavement. It’s important that you are able to prove that the will is fraudulent, as otherwise you could end up being penalised by the court for making false accusations.
Typically, fraudulent wills occur when the person committing the fraud deceives the testator so that they make certain gifts in their will, usually (although not always) benefitting the person committing the fraud. The two most common types of fraudulent involved to aspects of the creation of a will – execution and inducement:
Fraud in the execution of the will includes scenarios such as the testator signing the wrong will due to the person committing the fraud persuading them to do so.
Inducement most commonly refers to the person committing the fraud misrepresenting information to the testator, causing them to make certain provisions in their will that they otherwise wouldn’t have made.
Will Fraud and Forged Signatures
Fraud can also be committed if the person committing the fraud forges or falsifies the signature of the testator. This is also surprisingly common. In this scenario, you will be asked to provide recent examples of the testator’s signature for analysis, and you will almost certainly require a report from a calligrapher [i.e. a handwriting expert] – to confirm that it was the testator who actually signed the will and whether as a result an act of fraud was committed.
Will Fraud – and Contested Probate
If you suspect that you are dealing with a fraudulent will, you should speak to a solicitor as you may well have good grounds for contesting a will, as long as you have proof. If a will is found to be fraudulent then it is likely that it will be declared invalid, and the estate will be distributed according to the rules of intestacy (which in general terms favour the children and spouse of the deceased).
Wherever you live in England and Wales, if you have concerns about a potentially fraudulent will, our specialist inheritance lawyers can help.
Contested Probate – What is Undue Influence?
Undue influence occurs when excessive pressure is put on a testator to write their will in a certain way – pressure that stops short of actually being forced. For instance, if someone the person making the will knows coerces them into making a specific provision for them in their will that would not otherwise have been made, this might well count as undue influence.
It is particularly likely to occur where the person wielding undue influence is perhaps in a position of power and the testator is vulnerable in some way.
The result of undue influence
When contesting a will, if there is solid evidence of undue influence then it is likely that the court dealing with the case will revoke the will entirely.
Undue influence is not one of the most common reasons for disputing a will – partly as it can be hard to prove that undue influence actually took place, especially given the death of the testator who would otherwise have been the prime witness.
Arguing undue influence
As a result, other grounds for contesting a will are often used instead – such as the deceased’s mental capacity or lack of knowledge – for example if the testator did not properly understand what they were being asked to sign or appreciated the value of what they were being asked to gift.
There are, however, two particular reasons for considering contesting a will based on undue influence:
• If a person who has influence over the deceased receives a large part of their estate, or a proportion of their estate that would usually be considered inappropriate given their relations with the deceased.
• If a third party has influenced the contents of a will in the favour of a friend or a relative.
Undue evidence – what sort of evidence will I need?
If you are going to contest probate on the grounds of undue influence, you will need to be able to provide evidence of either manipulation or coercion.
It is important that you speak to your solicitor about your intentions as undue influence cases are usually particularly complex. For instance, it can often be hard to distinguish, or at least to conclusively prove, the differences between valid and perfectly proper persuasion or advice and undue influence itself.
The result of undue influence on wills
When contesting a will, if there is solid evidence of undue influence then it is likely that the court dealing with the case will revoke the will entirely, and as a direct result the estate of the deceased will be treated as intestate. This means that the relevant rules of inheritance will apply, prioritising the spouse and children of the deceased.
It’s certainly worth bearing that in mind if you’re considering a will challenge on the grounds of undue influence.
What Is a Probate Caveat?
A probate caveat is a written request made to the Probate Registry to be notified prior to a grant of probate being issued to an executor. The caveator [i.e. the person applying for the probate caveat] will receive notice from the Probate Office if and when a third party intends to obtain a grant of probate. They then have 8 days in which to take legal action to prevent that grant of probate or the caveat ceases to have any effect.
It’s important to note that a probate caveat must have been filed before an application for a grant of probate is received or it will have no effect.
A probate caveat lasts for 6 months.
Why would I want to stop probate?
There are a number of reasons why you might want to stop probate from going ahead, e.g., because of a dispute over who can apply for a grant of representation or whether a will exists.
This process provides the person granted the caveat with extra time to make enquiries and to obtain relevant information to determine whether or not there may be sufficient grounds to contest the will in some way through the court.
Probate Caveat – an alternative
It is not always appropriate to lodge a caveat i.e., if the grant of probate has already happened. An alternative to applying for a probate caveat is to apply to court for an immediate injunction against the executors of the estate. An injunction in these circumstances is a court order which permits or forbids someone from taking specified action. In probate cases, this could include, for example, preventing the executors from distributing legacies and assets to the beneficiaries until all legal issues are resolved.
As it is a court order, the breach of an injunction is taken seriously. If the executors were to breach an injunction, they would become personally liable for both a civil and criminal offence, which can include contempt of court [which itself can carry a prison sentence].
Invalid Wills – what are they and what effect they have?
The following are grounds which may render a Will invalid:
- Did the deceased intend to make the Will?
- Was it the deceased’s last Will and testament in time?
- Did the deceased have legal capacity and mental capacity when he/she made the Will?
- Did the deceased understand and approve the contents of the Will?
- Was the Will properly executed in accordance with the law i.e. was it signed and witnessed?
- Did the deceased make the Will under undue influence?
- Is there evidence that the Will was revoked and/or rewritten?
If a Will is found to be invalid, then the consequences could be significant. If there was a previous will, then the estate of the deceased is distributed under the terms of that previous will. But in the absence of a previous valid Will, then the estate must be distributed as if the deceased had made no Will at all (i.e. under what I known as the “intestacy rules”).
|And it’s worth noting that there is no time limit for challenging the validity of a will
How to challenge mistakes in a will – in what is known as rectification
As with any document, mistakes can sometimes occur in wills. Although great care is taken when drafting a will as a legal document, mistakes do occur and these can have a detrimental and potentially catastrophic impact when it comes to trying to divide a person’s estate. In instances where mistakes have been made, you may be able to try and correct that mistake – in a process that is known as “rectification”.
It is possible that the will might have been drafted in such a way which does not accurately reflect the testator’s true intentions, perhaps incorrectly missing a beneficiary or inaccurately leaving a smaller sum to a named beneficiary than was intended.
If a claimant can prove that this is the case, it might be possible to apply to the courts for the will to be rectified. But if you think this might apply to you, you will need to act quickly. Claims for rectification of a will can only be initiated within six months of the date of the grant of probate. After this time, managing rectification will get much harder. In fact you will need to prove to the court have a substantial case for the application being considered outside of the legal time limit. And that is not easy.
In terms of the burden of proof, you must be able to provide ‘convincing evidence’ that the testator’s intentions are not accurately reflected in the will.
It might even be that wording or punctuation has caused the testator’s intentions to be inaccurately interpreted, which can be particularly infuriating for a beneficiary who then goes on to lose out financially. The burden of proof, though, is on the claimant so it must be considered as to how you intend to prove that a mistake has been made and that the testator’s real intentions were contrary to what is written in the will. This can tend to be far from easy.
Applications for rectification of a will should be made to a district judge or registrar, but this process is different if the probate process has already begun. The specific court procedure rectification can be quite tricky. So it’s really important that you get a solicitor with plenty of experience of contested probate before parting off any legal action yourself
Need a specialist contested probate solicitor? Don’t suffer in silence. Contact us for free initial phone advice today
So if you are thinking of Contesting a Will, contact one of our specialist team straight away.
Our team offer no win no fee agreements for appropriate contested probate cases. Click here to read more about how no win no fee works