Contested probate – The hows and whys
Distributing the estate of a deceased person is a challenge that often results in legal wrangles between family and friends, especially if they feel that they have been left out of the will or have been ‘short changed’ in some way. This can lead to family arguments and even a challenge to the will itself. But under what conditions can a will be challenged and how do you go about doing so? Here, Anthony Kalp, Solicitor with Berry & Lamberts takes a brief look at situations where a will might be challenged.
Five principal ways to challenge a will
To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will (or their spouses or civil partners). If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the will.
Lack of capacity
A will can only be made by an individual who understands the significance of the act and the consequences to their estate of doing so. This means they understand how the estate will be divided up and who will benefit after they have died. The individual needs to be in a competent mental state, and if there is any doubt over that fact, it can be challenged.
In recent years, it has become one of the most common justifications for contesting a will, largely due to the increasing number of dementia diagnoses among the elderly.
Undue influence may rise when someone has put pressure on the person writing the will to include clauses or bequests that they would not have included if they were writing the will free of any outside influence. As well as being mentally competent, the will-maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the will or not – tries to pressurise the will-maker to change the contents of a will, it can be justifiably challenged.
This is probably the biggest single factor for wills being challenged. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the will if they think that the will doesn’t make ‘adequate provision’ for them. To do so they must meet the following two conditions:
- The claim must be made within six months of the Grant of Probate being issued; after this deadline, the Court’s permission is required to issue a claim.
- Only certain people may make this type of claim, including a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had been in a relationship with the deceased for two years prior to their death, children, and any other individual who was financially maintained by the deceased before their death.
A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to challenge.
How to challenge a will
Typically, the most important factor in challenging a will is time. The earlier you are able to begin the process, the better. From the outset, our advice is to get help from a legal expert who specialises in contested wills as quickly as possible. This is such a complicated and difficult field that it’s almost impossible to make any headway without that all-important legal help. If you feel you have legitimate grounds to challenge a will, whether for financial reasons, or there is doubt that the person made the will with the full understanding of what they were doing, then the first thing your solicitor will do is to request a copy of the will from the executor, and, if the will was drafted by a solicitor, a copy of the solicitor’s file.
Once that happens, a letter of claim may then be sent contesting the will, which will need to detail the reasons why the person is challenging the will in the first place. This is usually for one or more of the reasons listed above, although one of the most common reasons is that a dependent such as a spouse or child feels that the will does not make ‘reasonable provision’ for them.
Even if the claim goes to court there is no guarantee that the court will overturn the bequests laid out in the original will. If they find that the will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the will and was not subject to any coercion, then the original will stand.
Contesting a will can be a long and complex process that requires a great deal of expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it’s a process that is typically both emotionally charged and difficult to approach with the required impartiality. For this reason, we recommend employing the assistance of legal professionals who specialise in wills and in particular contested probate.
If you would like advice to write a will please contact Anthony Kalp on 01892 526 344 or email firstname.lastname@example.org
The contents of this article are for general awareness purposes only. They do not constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.