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contesting a will

Contesting a Will

In England & Wales, you can leave your estate to anyone you like, whether that is a charity, relatives or friends. However, this can result in disappointment, if someone is either excluded from a will or they do not receive as much as they expected from an estate.

Generally, probate claims and disputes tend to fall into the following:

  • Challenging the validity of a will or codicil;
  • Claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Claims about how an estate or trust fund is being administered e.g. a dispute between the executors and beneficiaries.

These are explained further below:

Challenging the validity of a wall

There are a number of reasons why a will or codicil can be declared invalid, for example if it has been forged or it is not signed in a particular way.

To be valid the person making the will must also:

  • Have had the ‘testamentary capacity’ (a certain level of mental capacity) required to make a will;
  • have been free from any undue influence or ‘coercion’ when they made their will; and
  • have known of and approved the contents of their will.

Because some people who make wills might be reliant upon others for care and support or have health issues which might affect their testamentary capacity, it’s possible for concerns to later be raised over the validity of their will.

Anyone person making a will must not be affected by any ‘poisoning of the mind’. This is usually where a will maker disinherits someone because of false representations made about that individual, e.g. person A tells the will maker a lie about person B, which causes the will maker to exclude person B from their will.

Claims under the Inheritance (Provision for Family & Dependants Act) 1975

This type of claim does not challenge the validity of the will. Instead, it asks a court to give ‘reasonable financial provision’ to someone from an estate e.g. to give them a legacy if they have been excluded from a will.

Only certain people qualify to bring these types of claim. These include:

  • a spouse/civil partner of the deceased;
  • the former spouse/civil partner of the deceased – who has not remarried or entered into a another civil partnership;
  • someone living with the deceased during the two years immediately prior to their death;
  • a child of the deceased;
  • anyone who was treated as the deceased’s child (e.g. a step-child); or
  • anyone who was financially dependent upon the deceased.

Qualifying as a claimant does not guarantee that a payment will be made to them from the estate. This depends on a number of factors which the court will take into account.

Claims under the 1975 Act must usually be brought within 6 months of the date of the grant of probate.

Administration of a will/trust

These claims usually involve disputes between executors/trustees and beneficiaries. However, they can also involve concerns or queries about how an estate or trust fund should be managed.

The court can provide guidance to those involved, determine issues in dispute and also give the parties directions to both progress and resolve matters.

Claims involving estates or trust disputes can involve limitation periods and risk. Whatever type of claim you may be considering or dealing with, it’s important to seek specialist legal advice as soon as possible.

Our dedicated team of contentious probate solicitors can advise you about any claims involving wills, trusts or estates.

Time limitation on Inheritance Act claims
Nov
2018

Inheritance Act claims must be issued before the limitation date or the claimant will require the court’s permission to bring a claim, which can be refused.

Probate fees
Nov
2018

Currently, the fee paid when applying for probate is £215 (or £155 for those applying through a solicitor) and there is no fee charged if the estate is worth less than £5,000, but from April 2019, probate fees will be changing.

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