A Will is a legal document which sets out how a person may wish to distribute their assets following their death.  If the deceased left a Will their Estate is administered by the individuals identified in the Will as executors. The executors role is to collect their assets and distribute them in accordance with the terms of that Will.

If a Will is either invalid or if the deceased left no Will, their Estate will be administered according to the Intestacy Rules set down by statute.  There is a list of persons entitled to inherit in priority including a spouse, civil partner and children, together with extended family where all of the above do not exist.

There is currently no provision in the rules for unmarried co-habiting couples and such an individual is not entitled to anything from the deceased’s Estate under the Statutory Rules. The administrators of the Estate are also appointed to act for the Estate in priority set out by the statute.

A Will can be contested by family members or by other persons mentioned in the Will.  There must be a valid legal reason to challenge, including: –

  • The Will was not executed correctly.
  • The deceased did not have mental capacity when writing and executing their Will.
  • The deceased was subject to undue influence when writing their Will.
  • The deceased did not confirm knowledge and approval of the content of the Will when signing.

There is evidence of fraud or fraudery e.g. allegations the testator did not create or sign the Will.

This describes when a dispute arises relating to the administration of a person’s Estate after death.  This may include questioning the validity of the Will, concerns regarding management of the Estate by the executors or trustees, disagreements between beneficiaries or a claim against the Estate where no reasonable financial provision may have been made.

If you believe there is a valid reason and evidence to contest a Will obtaining early expert specialist legal advice is recommended. It is important to consider what the outcome of contesting a Will found to be invalid may be.  If there is no earlier Will that you would benefit from it is important to understand the Intestacy Rules and whether you would benefit under the Statutory Rules.

These may vary on a case by case basis.  A Will does not take affect until the testator has died.  Claims contesting the validity of the Will should where possible be brought before a Grant of Probate is obtained by the executors.

Generally, a claim by a beneficiary against the Estate must be brought within 12 years of death (except in a case of fraud). 

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be issued within 6 months of the Grant of Probate.

Each case depends on its circumstances.  Depending upon the evidence and all parties engagement in any settlement a claim can take between 3 months to 2 years generally although some cases have been contested for much longer.

Many contested cases are encouraged to settle by negotiation, mediation or other alternative dispute resolution where possible.  The Court hearing will only occur if there are merits to a case and all attempts to reach a settlement have failed.

This often depends on how strong a case is on its evidence and whether the parties to the action are capable of reaching a settlement or if a case goes to trial.

There are several options available including:

  • Payment of your own legal costs on a monthly basis.
  • A Conditional Fee Agreement (no win, no fee).
  • Legal expense insurance (which you may have as part of a home insurance policy).
  • Payment on conclusion of the case – a deferred agreement.
  • Litigation funding arrangements – a legal costs loan for which an assessment on ability to repay shall be necessary.

Firstly, thorough checks should be made to ensure that there is no Will.  This can be either through the deceased’s personal papers, enquiries with the deceased’s bank and local solicitors or undertaking a National Register – Certainty Will search.

If there is no Will, a Grant of Letters of Administration can be applied for, but the individual entitled to make the application follows a list of priority applicants.

A Caveat is the first step in contesting a Will.  It is a form filed with the Probate Registry that prevents a Grant of Probate being granted without the person filing the Caveat being consulted first.  A Caveat is valid for 6 months but can be renewed and extended upon payment of a fee.

This follows the entry of a Caveat.  A person who believes the Will to be valid and is entitled to apply for a Grant of Probate can issue a “warning” from the Leeds District Probate Registry to the person who entered the Caveat. 

Upon receipt of the warning the person who entered the Caveat shall have 14 days to enter an Appearance Notice giving reason why the Caveat should not be removed.

If a valid ground is entered on the Appearance Notice, the Caveat becomes permanent and can only be removed by consent of the parties upon settlement terms being reached or Court Order.

If you have been left out of a Will or where there is no Will and you wish to challenge how the Estate shall be divided up you must firstly be an eligible applicant.  These include:

  • A spouse or civil partner of the deceased.
  • A former spouse or civil partner of the deceased who has no remarried.
  • A child of the deceased.
  • An individual treated as a child of the deceased.
  • A person maintained by the deceased before death.

The law is governed by the Inheritance (Provision for Family and Dependants) Act 1975. 

To be successful, the Court must be satisfied that no sufficient reasonable financial provision has been provided to you.  This generally depends upon the circumstances of each individual case.

The claim must be issued within 6 months of a Grant of Probate being obtained. It may in certain circumstances be possible to apply to the Court to extend time if there is a reason to do so.

The Association of Contentious Trust and Probate Specialists (ACTAPS) was established in 1997 creating a membership and forum for legal specialists advising and representing clients in this area of law. 

Membership requires specific criteria in the Members experience and volume of work undertaken.  

Our firm as two full members, Catherine Loadman and Kerry Hull.

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Would you like to know more?

For help and advice, talk to a member of our team. They can advise on the best options in your matter.

Call: 01708 229 444 Email us

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