Any dispute that involves inheritance and the validity of a will in the UK is classed as a Disputed Will or Contentious Probate.
Every year, millions of people are put into scenarios where there are concerns with contentious probate. Here, we’ll take a look at probate and contentious probate. We’ll also provide you with some handy tips on how you may be able to avoid tricky legal issues.
When a person dies, unless they possess a very small state, their estate is required to go through a process called Probate. This process is essential in determining the validity of their Will.
What is Contentious Probate?
In basic terms, contentious probate is where a disagreement occurs after someone has passed away about the distribution of their assets. A dispute can emerge if an individual in the family feels like they have not been given what they were promised. You may even have concerns over how the Will was made.
Grounds for Contesting a Will
You can choose to contest a will either because you believe the process of making the will failed to comply with the law or there were other issues sufficient to prove the Will is invalid.
A valid will must have been made in writing, without influence and voluntarily. The person writing the will must be over the age of 18 and be of sound mind. The will must also be signed in the presence of two witnesses. Also, the two witnesses are required to sign the will in the presence of the person creating the will.
Inheritance Act 1975
The main piece of legislation that can be used for contentious probate is the Inheritance Act 1975. If the claim is that the will does not adequately provide financial provisions for someone then this Act establishes who can claim. If you do wish to claim, there are rigid time constraints. Any claim must be made within 6 months of the letters of administration or grant of probate.
Am I Able to Claim?
To make a claim under the Inheritance Act 1975, you must either be:
- A former spouse, only if you have not yet remarried
- A child of the deceased
- A spouse of the deceased
- Someone who the deceased supported financially
Contesting a Will
In the UK, you can contest a will based on the following grounds:
- Undue coercion or influence
- Lack of testamentary capacity
- Forgery or fraudulent activity
- Wills Act 1837
- Lack of knowledge and approval
Undue Influence of Coercion
One of the main grounds for contesting a will is that the person who made the will was subject to undue influence or coercion. For example, this could be due to pressure from a specific family member. In this instance, the law defined pressure as coercion, which covers several different formats. This includes verbal bullying, physical violence, or simply leading a seriously ill person astray. Here, he key question that will need to be established is whether or not the conduct overpowered the will of the testator and caused them to make change their wishes.
Lack of Testamentary Capacity
When you make your Last Will and Testament, you are required to be of “sound mind, understanding and memory”. When it comes to deciding whether or not a person has sufficient mental capacity, they must demonstrate that they:
- Understand the extent of their estate
- Understand the nature of their effects
- Have the ability to comprehend and appreciate the claims to which they are giving effect
- Must not be affected by any mental disorder
Forgery and Fraudulent Behaviour
If you can provide evidence that shows a Will has been forged, or the person who made the Will signature has been forged, then this will result in the will being invalid.
Fraudulent activity is an extremely serious allegation and should not be raised unless you have real evidence to support your allegation. This is why extensive enquiries are usually carried out before any allegation of fraud is made. Typically, these investigations involve contacting witnesses, friends and family, as well as the draftsman of the Will.
Often, a fraudulent will follows suspicious and fraudulent activity during the testator’s life time. Things like financial documents and bank statements can help to reveal suspicious activity.
Wills Act 1837
To ensure that a will is valid, it must comply with section 9 of the Wills Act 1837. This includes:
- The will must be completed in writing by the Testator
- The Testator must have intended for the will to be valid with his/her signature
- The signature of the testator must be acknowledged by two witnesses
- Both witnesses are also required to sign the will in the presence of the testator
Lack of Knowledge and Approval
If a will has been created in suspicious circumstances, but there is insufficient evidence to prove that undue influence was used, to be valid, the Court must be completely satisfied that the testator approved of and understood all of the contents of the will.
In a situation where the deceased possessed the right mental faculties to create valid will, the will will stand. However, there are a number of circumstances, which we will detail below, where it must be demonstrated that the testator had the necessary knowledge required to understand the content of their will:
- If the testator is unable to write, speak or is paralysed
- Is deaf/and or dumb
- Blind or illiterate
- The will was allegedly signed by another person at the discretion of the testator
Is Contesting a Will Costly?
Like any form of litigation, disputes surrounding inheritance can become extremely costly. In fact, will or probate disputes can be more expensive than other forms of litigation because of the high levels of investigation required. There is no average cost when it comes to contesting a will as each case is unique. You will likely want to enlist the help of a solicitor with a proven track record in will and probate disputes.
Before any proceedings, it is important that you consider any cost implications at the outset. Many solicitors now offer a ‘no win no fee’ option, so you will only pay out if you win your case. An example of where you can get advice on contesting a will can be seen through The Inheritance Experts who are UK wide specialists in will and probate disputes and can offer a fast and free initial consultation.
If you think that there are grounds for you to contest the will of a relative or friend after it has gone through probate, it is vital that you seek out legal advice with solicitors like those mentioned above as quickly as possible. This is mainly because if you submit a claim through the Inheritance Act 1975, then you have a limit of 6 months after the Grant of Probate to contest the will. The time limits to contest a will are always dependent on the individual circumstances of each case and the grounds that you wish to contest. With any inheritance dispute, the quicker you seek legal advice the better.
One of the easiest ways to protect your interests and make sure that the wishes of the deceased are carried out is to seek out legal advice if you suspect there is something wrong with a will. This will help to give you peace of mind, and if there is something amiss, you will be able to rectify it quickly.
