Challenging the validity of a will or pursuing a claim for provision or greater provision to be made for you from an estate can be extremely stressful. Especially when you are also having to come to terms with the death of a loved one. Disputes around these matters need to be dealt with carefully and with compassion.
Deborah Francis is an associate of the Association of Contested Trust and Probate Specialists (ACTAPS) and has considerable experience helping clients in this area. Specifically in circumstances where a client finds it is necessary to pursue or defend a claim. Deborah also assists executors of an estate that is subject to a claim.
Our team will endeavour to resolve your matter amicably at the earliest opportunity, in order to minimise the stress, reduce the risk of causing irreparable damage to relationships and to conserve costs.
We can help you with all types of wills, trusts and estate disputes, including:
- Questioning the validity of a will
- Inheritance Act claims
- Will fraud
- Disputes over which version of a will should be used
- Disputes over how an executor is handling probate
- Removing executors
- Trust disputes
- Raising a proprietary estoppel (also referred to as promissory estoppel)
- All other contentious probate matters
The 1975 Inheritance Tax Act
Where no or insufficient provision has been made for you in a Will, you may be able to pursue a claim for provision to be made under the Inheritance (Provision for Family & Dependents) Act 1975. There is a strict time limit of 6 months from the date the Grant of Probate was issued to pursue a claim and so it is very important to seek advice as early as possible.
Questions that are often asked include:
When might a will be contested?
When there is a lack of legal formalities. A will must be in writing, signed by the testator (the person making the will) and witnessed by two others for it to be a valid legal document. (box)
When there is lack of testamentary capacity. This is the legal term used to describe a person’s legal and mental ability to make a Will. We can assist you if you believe the testator did not understand that they were making a will or, the effects the will might have.
Lack of knowledge and approval. The testator didn’t know or didn’t approve what was in the will.
Fraud or undue influence. An imposter or person taking advantage of a position of power over the testator had an influence in the making of the will.
Subsequent revocation. If there is a later will or the testator married after making the will.
Proprietary estoppel. This is a legal claim that can be made when the testator failed to keep a promise that they made to you (which you had relied upon to your detriment) to leave something to you in their will.
Constructive trust. The deceased tried to make a gift of property that does not belong to them because it has already been placed in a trust.
Debt. The deceased owed you money.
Lack of reasonable provision. Under the Inheritance (Provision for Family and Dependants) Act, certain people may be able to make a claim for reasonable financial provision from a deceased person’s estate if the will did not make any provision for you at all or that provision was not reasonable. There is a strict six-month time limit for making this claim and there are only certain family members who can make a claim. We can provide you with full advice on whether you are entitled to make a claim and your chances of success.
Can I have the executor of an estate removed?
Yes, potentially. If you have an interest in the estate or you are a creditor of the estate, you may make an application to the court to remove, substitute and appoint additional executors.
Where you are unhappy with the conduct of an executor, it is always a good idea to consult a legal expert first to make sure you clear on your legal position. In many cases, executor disputes can be resolved amicably by talking to the executor in a calm, reasonable way and making your concerns clear.
Should you need to have an executor removed, it is often a good idea to replace them with a professional executor such as a solicitor to make sure the rest of the estate administration process is carried out correctly and efficiently.
Can I stop probate?
Yes, you can prevent probate being granted by entering a caveat with your local probate registry. This prevents probate from being granted for at least 6 months unless the caveat is removed before that time.
The caveat can only be removed by you or by the executor applying to have it removed, in which case you will have the chance to explain your reasons for wanting to delay probate. It will then be up to a court to decide whether the caveat should remain in place or be removed.
How long do I have to dispute a will?
This depends on the type of dispute. If you are making an Inheritance Act claim, you have 6 months from grant of probate to do so. If you are a beneficiary and wish to make a claim, you will have 12 years from the date of death. In cases of suspected fraud, there is no time limit for making a claim.
That said, it is usually better if you can raise a dispute before probate is granted as you have the option to enter a caveat and hold up probate until your concerns are dealt with. It will also normally be much easier to settle a dispute amicably before assets from the estate have been distributed.
Who can challenge a will?
- A beneficiary under a previous Will
- Someone who would be entitled to benefit from the Estate via the Intestacy Rules
- Someone who is owed money by the Deceased
- Someone who was promised something by the Deceased
- Someone who may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975, for provision or greater provision to be made for them from an estate.
Who can defend a claim?
If you are an executor of an estate, you are required to maintain a neutral position and should not take steps to defend a claim. However, if you are a beneficiary you are permitted to take steps to defend your inheritance.
Deborah has considerable experience in providing assistance to both claimants and defendants in will disputes. She is also happy to provide advice to executors, including professional executors who are handling an estate that is subject to a claim.
Inheritance (Provision for Family & Dependants) Act 1975
In order to be eligible to bring a claim for financial provision or greater financial provision to be made to you under the Inheritance (Provision for Family & Dependents) Act 1975 you must be;
- A spouse or civil partner of the deceased;
- A former spouse or civil partner of the deceased who has not remarried or formed a new civil partnership;
- A person (not being a spouse, former spouse, civil partner, or former civil partner) who for the whole or of a period of two years ending before the deceased died was living in the same household with the deceased as if they were a married couple or civil partners;
- A child of the deceased;
- A person (not being the child of the deceased) who was treated by the deceased as a child of the family;
- Any person who immediately before the death of the deceased was being maintained either wholly or party by the deceased.
Proprietary is an equitable remedy that may be available to a Claimant when the following legal principles are all satisfied:
- a representation, assurance, or a promise was made to a Claimant;
- which was relied upon by a Claimant;
- the Claimant suffered detriment as a result of their reliance upon the representation, assurance, or promise that was made.
All three elements must be satisfied.
It is an equitable remedy that can be raised to prevent a person from going back on their word where it would be unfair for them to be permitted to do, as it would result in creating an injustice.
The Court has a very wide discretion in respect of the award it can make when they find an Estoppel should be applied.
Each case will be considered upon its own circumstances.