Wills and Contentious Probate

It is never an easy time when a loved one dies.  It may be that they left a valid Will for their appointed executors to administer to give effect to their wishes, or that they died without making a valid Will (intestate) and an administrator or administrators need to be appointed to administer the deceased’s estate in accordance with the Rules of Intestacy.

As a general rule a person making a Will is entitled to leave their estate to whoever they wish, but in reality the law places a number of limitations on that general rule and in certain circumstances allows family members and disappointed beneficiaries to challenge the validity of the Will or make a claim for reasonable financial provision from the deceased’s estate where they are a close relative or were financially dependent upon the deceased.

The following is a brief guide to such claims, but the likely success of each case is very much dependant on its own facts.  As such claims are subject to relatively short strict time limits; we strongly recommend you speak to a member of our Dispute Resolution Team sooner, rather than later, to see whether you have a good claim and whether it is worth pursuing.

Do I have grounds to contest the validity of a Will?

In law a Will can only be contested on a limited number of grounds:

• The person that made the Will (the testator) lacked the require mental capacity to make a valid Will;
• The testator lacked sufficient knowledge and approval of the terms and effect of the Will;
• The testator made the Will under the undue influence of another person or persons, such that it does not reflect the testator’s true wishes; and
• The Will was not validly executed in accordance with the signature and witness requirements of section 9 of the Wills Act 1837

I believe I have grounds to contest the Will what should I do next?

There are strict time limits that may apply to your claim.  If you believe you have grounds to contest the Will then please call a member of our Dispute Resolution team to arrange a brief no obligation meeting to discuss your potential claim.

I have not been left what I expected in a Will. Is there anything I can do?

If you are a close family member or were financially dependent on the testator during his lifetime then you may be entitled to make a claim for reasonable financial provision from the deceased’s estate under the terms of the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).

To qualify to make a claim under the 1975 Act the deceased at the time of death must have been domiciled in England or Wales.

The following are the limited classes of persons entitled to make a claim under the 1975 Act:

• A wife or husband of the deceased;
• A former wife or husband of the deceased who has not remarried;
• A child of the deceased (which can include an adult child);
• A person who was treated as a child by the deceased through marriage; and
• A person who, immediately before death, was being maintained by the deceased.

I believe I may qualify to make a claim under the 1975 Act. What should I do next?

There are very strict time limits that apply to a claim under the 1975 Act, namely 6 months from the date a grant of representation is obtained from the Probate Registry in relation to the deceased’s estate.

If you believe you have a potential 1975 Act claim, then please call a member of our Dispute Resolution Team today to arrange a brief no obligation initial meeting to discuss your potential claim.

In addition to claims relating to the validity of a Will and claims for financial provision under the 1975 Act, Hethertons also provide advice and assistance of a number of probate related claims, including:

• Dealing with a claims to rectify the terms of a Will;
• Making a claim on behalf of a disappointed beneficiary against a solicitor or other person who negligently drafted the deceased’s Will;
• Dealing with an executor or administrator that is failing to properly administer and distribute the deceased’s estate;
• Removing or replacing an executor or administrator of the deceased’s estate;
• Seeking a ruling from the court as to how a particular aspect of the administration of the deceased’s estate should be dealt with;
• Dealing with contested applications for the appointment of administrators and Office of the Public Guardian deputies; and
• Dealing with concerns regarding decisions or actions taken by the Deputy or the Attorney of a person who does not have the mental capacity to make such decisions for themself.

For further information or assistance please contact Toby Conyers-Kelly on 01904 528200 or email tck@hethertons.co.uk.  For advice on drafting a Will, or to find out more about our full range of Later Life services, please contact Barbara Stephens on 01904 528200 or email brs@hethertons.co.uk.