Contentious Probate

Contentious Probate - Challenging a Will

There are many reasons why a Will may be in dispute, or an Executor fails to perform the duties expected of them. Challenging a Will is more common than you'd think. If you would like to dispute a Will (contentious probate) speak to Lawson West about it.

At Lawson-West Solicitors, we understand that losing a loved one is hard enough without the difficult task of dealing with probate disputes, hence why we are here to take the pressure off and help you deal with any dispute that arises. Contentious Probate is a dispute relating to the administration of the estate of a deceased person. It can be a dispute about the interpretation of a Will, the value of assets, the apportionment to beneficiaries, or the performance of the executors in their duties.

We have experience of acting for executors, trustees, claimants, defendants, beneficiaries, disappointed beneficiaries and dependants in relation to a wide range of contentious probate matters. This includes but is not limited to:

• Disputes over invalid, disputed or fraudulent wills

• Rectification of mistakes or variations of wills

• Inheritance (Provision for Family and Dependants) Act 1975 claims

• Power of Attorney disputes

• Dealing with disputes concerning the administration of an estate

• Bringing claims for, or defending claims against, an estate

• Making applications to Court for a “Beddoe” order in relation to the personal liability of an executor for costs

• Making and defending applications to substitute or remove an executor and dealing generally with disputes concerning executors/trustees and their breaches

• Challenging the fees incurred by an executor

• Dealing with disputes between beneficiaries.

Please note that the above list is not intended to be an exhaustive list of areas that our lawyers deal with, nor is the information above intended to substitute legal advice. You should always consult with a solicitor directly. Should you have any queries, please do not hesitate to contact the Dispute Resolution team here at Lawson-West Solicitors.

 

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 an 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:

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 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 and is not keeping proper accounting records.

Contact the Litigation & Dispute Resolution Team

If you believe you have a Wills dispute situation where you require legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively complete the Contact Us form, (selecting Dispute Resolution for Individuals in the type of legal matter drop down box) and our disputes team will get in touch as soon as possible.

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Further information on this topic can also be found within our articles below:

Part 1: Contentious Probate Explained - for Executors

Part 2: Contentious Probate Explained - for Beneficiaries

How to Contest a Will or Probate – it’s more common than you’d think

Limiting the time period for bringing a claim in Contentious probate