Contested Probate and Will Disputes
All Wills have the potential to be contested. A Will can be challenged on validity or the provisions it makes.
The procedure for challenging a Will: The provisions of a Will are not usually known until the testator dies. At this point, the executors will start the process of obtaining Probate of the Will which allows them to start the administration of the estate. If anyone wishes to dispute the validity of the Will, they can prevent the executors by blocking the Probate process. However, once the estate has been distributed it will be far more difficult for someone who is challenging a Will to recover any money they are entitled to from the estate.
Negotiation with the executor and beneficiaries to try to resolve your dispute is advised; perhaps by getting agreement to divide the estate differently from what is stated in the Will. If you are unable to resolve the dispute, the next step is to begin a claim in court to have the provisions of the Will set aside.
How the Court decides a Will’s validity: The Court will make a decision based on the evidence it hears and a consideration of legal arguments. Medical evidence can be especially important but other types of expert evidence may also be required, such as handwriting analysis.
People who knew the testator may also need to give evidence about their apparent state of mind, and the relationship between the testator and those who are claiming an interest in their estate.
The Court will either decide that the Will is valid and therefore will grant probate to the executor, or could declare that the Will is invalid.
Claims under the Inheritance Act 1975: The Inheritance (Provision for Family and Dependants) Act 1975 allows certain ‘categories of person’ to make a claim for ‘reasonable financial provision’ out of the estate, regardless of whether the deceased made a Will or not.
Those who fall into the following categories may be entitled to make a claim:
- Former spouses who have not remarried
- Children of the deceased
- Any person treated as a child of the deceased
- Any other person who was maintained by the deceased.
You have the right to make a claim even if you are listed as a beneficiary in the Will. For example, if the deceased had two children and left unequal shares to them, the child less well provided for in the Will would still be able to make a claim under the Act.
The procedure for making a claim: A claim under the Inheritance Act 1975 must usually be started within 6 months of the Grant of Probate or Letters of Administration being issued. Permission would be required for a claim to be made outside this time limit.
Disputes over the way an estate is being administered: Even if there is no dispute over the contents of a Will, disagreements can arise about how an estate is managed. In serious instances, the beneficiaries may be able to apply to the court to remove an executor and substitute a new one. This could occur, for example, where the executor is stealing funds from the estate, is not keeping proper accounting records.