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Below is a brief guide to the main grounds on which you may be able to: dispute the validity of a Will or part of a Will, make a claim for a share of a deceased person’s estate, or challenge the way an estate is being administered.  For more detail on how to go about bringing a dispute, please call Nadia Faki on 01858 445 480.

1. The validity of a Will

There are a number of grounds on which it may be possible to challenge the validity of a Will as follows:

  • The person making the Will (also known as a testator) did not have sufficient mental capacity at the time the Will was made;
  • Undue influence was placed on the person making the Will at the time it was made;
  • The person making the Will neither knew of nor approved of the contents of the Will;
  • The required formalities under the Wills Act 1837 were not observed when the Will was made (e.g. if it was not properly witnessed).

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 taking any action by registering a caveat, which in fact blocks the probate process.

Registering a caveat is a simple process which requires the payment of a small fee (currently £20), and prevents the estate being distributed to the beneficiaries. 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.

After registration of a caveat, you are then able to negotiate with the executor and beneficiaries to try to resolve your dispute; 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.

However, the executor of the Will could also issue a ‘warning’ to the person who registered the caveat, requiring them to set out their objections to probate being granted. The executor could then begin a claim in court for a declaration that the Will is valid and for probate to be granted.

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, e.g. to determine whether the testator had sufficient mental capacity, can be especially important but other types of expert evidence may also be required, such as handwriting analysis if it is disputed whether the testator actually signed the Will themselves.

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’s decision

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. If it rules that the Will is invalid the outcome depends on whether the testator had made a previous Will. Where a previous Will exists, it will replace the one that was found to be invalid. Where there was no previous Will, the estate will be divided according to the rules of intestacy.

2. 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:

1. Spouses

2. Former spouses who have not remarried

3. Cohabitants

4. Children of the deceased

5. Any person treated as a child of the deceased

6. 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 vastly 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 grounds on which a claim can be made under the Inheritance Act 1975

The only ground on which you can make a claim under the Inheritance Act is that the distribution of the deceased’s estate  failed to make ‘reasonable financial provision’ for the applicant. The court therefore needs to first decide what is ‘reasonable’ and will take account of the following:

1. The financial needs and financial resources of the person or people making the claim, both now and in the future

2. The financial needs and financial resources of the estate’s beneficiaries, both now and in the future

3. Any obligations and responsibilities the deceased had both towards anyone making a claim and the beneficiaries of the estate

4. The size and nature of the estate

5. Any physical or mental disability of both anyone making a claim and the beneficiaries of the estate

6. Any other matter the court considers relevant, including the conduct of anyone making a claim or any other relevant person.

If a spouse or former spouse is making a claim, the court will also consider:

  • The age of the person making the claim and the length of the marriage
  • The contribution made by the person who is making the claim to the welfare of the deceased, including looking after their home or family.

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.

3. 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. Although in minor cases, there is little formal action that can be taken other than a letter of complaint, in more serious instances, the beneficiaries may be able to apply to the court to remove an executor and substitute a new one. This could occur where the executor is stealing funds from the estate; is not keeping proper accounting records; has failed to comply with a court order; or is otherwise wasting or mismanaging the estate’s funds.

The risk of mismanagement is greater where the executor is also a trustee of some of the estate, or where other trustees have been appointed to manage part of the estate on behalf of young beneficiaries who will inherit at a later date.

4. Other types of dispute

Interest actions

These usually occur when someone dies without having made a Will and there is a dispute over who is entitled to take out the Grant of Representation to administer the estate. This could happen where the person thought to be entitled to administer the estate is the deceased’s spouse but another relative is in doubt about the validity of the marriage.

Rectification

Where a person has been excluded from a Will but believes this is due to either a clerical error; or a failure to understand the testator’s wishes, they may be able to make a claim for the rectification of the Will. Such an application should normally be made within six months of a grant of probate being taken out, although permission can be obtained for a claim to be made outside this time limit.

5. Costs in Contested Probate cases

The court has wide discretion with regard to awarding costs in all cases. In many forms of litigation the loser pays most or all of the winner’s legal costs, however, in probate cases the outcome is usually impossible to predict. Both sides in a probate dispute could have their costs awarded out of the estate, such as where the deceased has changed their Will repeatedly, and the court decides that it was effectively their fault that proceedings had to be brought to clarify the legal position. And, if there is doubt about mental capacity, the court may award costs out of the estate to the losing party, up to the point in the proceedings where medical evidence was obtained that made the likely outcome of the action clearer.

In general, costs are dealt with at the very end of a contested (or contentious) probate case.

For more information about any aspect covered here please contact specialist Wills & Probate solicitor Nadia Faki at Lawson-West on 01858 445 480.