"Where there's a will, there's a war". So they say. Indeed, new research from Friends Provident suggests that three quarters of British citizens do not have a will, and 24% of people anticipate that their inheritance could cause arguments among relatives.
It is an unfortunate fact that whether or not a Will has been made, the death of a loved one can mean that there's a real possibility of a dispute arising out of it. The increasingly complex ways in which families are structured, with multiple marriages, children from each, blended families and rocketing house prices, can all lead to highly charged family fights after a death.
It may be that a person who hasn't been provided for in a will believes that they should have been, or that they should have received a larger inheritance than they did. It could be that there is a dispute arising from the validity of the will itself, or its interpretation. There can be disagreements to do with the role of executors or the solicitors appointed in the will.
These matters are often referred to under the umbrella term of ‘contentious probate - although disputes can arise at any time including before probate has been granted, while probate is ongoing and even after probate has been completed.
* Claims under the Inheritance (Provision for Family and Dependents) Act 1975
* Disputes involving Executors or Trustees
* Disputes arising from Powers of Attorney
* Negligently drafted Wills and professional negligence claims generally
* Cases involving trusts and estoppel claims
Our contentious probate expertise
Inheritance Act claims
If you have been excluded from a Will or believe the bequest you have been left is insufficient, you may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975. This allows you to make a claim against the deceased’s estate for ‘reasonable provision’.
What is considered reasonable provision will depend on the circumstances, but the general principle is that an Inheritance Act claim allows dependants of the deceased to cover the cost of financial assistance and other types of support they would normally have received from the deceased.
You can make an Inheritance Act claim when there is a valid Will or where the deceased has passed away without leaving a Will.
Where there are concerns over the conduct of an Executor (or Estate Administrator if there was no Will), then you may need to take legal action. This might be a simple matter of obtaining a copy of estate accounts (which the Executor or Administrator should be keeping updated) or you may need to take action to have the Executor or Administrator removed and replaced.
Contesting the validity of a Will
There are various reasons why you might wish to contest the validity of the Will being used for probate, including:
- Lack of mental capacity by the deceased when the Will was made
- Lack of properly knowledge and approval of the Will by the deceased
- Undue influence upon the deceased when making the Will
- Lack of valid execution of the Will e.g. it was not properly signed and witnessed
- The Will is fraudulent or forged
If a Will is found to be invalid, a previous version of the Will can be used or the estate can be handled under the rules of intestacy.
Powers of Attorney disputes
When someone acts under a Power of Attorney, they are empowered to make decisions on behalf of someone without the mental capacity to make those decisions themselves. If you have concerns about an Attorney is managing the affairs of a vulnerable loved one, you may be able to take action to have them removed as an Attorney. You may then be able to have the Court of Protection name someone to act a Deputy for the vulnerable person instead, ensuring their needs are met and their welfare protected.
Negligent Will drafting claims
If you believe the solicitor who prepared a Will made errors when doing so that have caused you a financial loss, you may be able to make a professional negligence claim against them. This can allow you to claim compensation to cover the loss you have experienced.
Where a Will has created provision for a trust to be set up, there may sometimes be questions over the actions of the trustees responsible for administering the trust. You may therefore need to take action to force a trustee to take certain actions or cease particular activities, or take steps to have a trustee removed who is acting inappropriately.
It may also be that, notwithstanding the contents of the will, you are entitled to a particular asset because it has been promised to you by the owner when they were alive. If you have relied on this promise to your own disadvantage (for example, by working on or improving a house without being paid because you have been told will be left to you) then it may be that the court will enforce this promise regardless of the provisions in the will.
Common questions about contentious probate
Is there a time limit for contesting a Will?
This depends on the nature of the dispute. If you wish to make an Inheritance Act claim, you will normally need to do so within 6 months of probate being granted. However, if you wish to challenge a Will on the grounds of fraud, there is no time limit for doing so. It is, however, usually advisable to press on with the matter sooner rather than later as it may be difficult to recover funds that the executors have already distributed.
Can you stop probate?
Yes. If you wish to stop probate from being granted, you can do so by entering a ‘caveat’ at any Probate Registry for a small fee. This prevents probate from being granted for 6 months, unless the Caveat is withdrawn or removed by the court.
You can extend the Caveat at any time and as many times as you like, meaning probate can effectively be stopped indefinitely, giving you time to resolve the dispute at hand.
Who can challenge a Will?
This will depend on the circumstances, but generally those who may be able to challenge a Will include:
- People named as beneficiaries of the Will
- Dependants of the deceased not named in the Will
- People named in a previous version of the deceased’s Will
- People whom the deceased made a verbal or other written commitment to leave a bequest to, but who were not named in the Will
Do you need to go to court to challenge a Will?
In most cases, disputes over Wills, inheritance and probate can be resolved out of court, using Alternative Dispute Resolution (ADR) methods, such as mediation. Mediation involves the various parties involved in the dispute meeting with a trained mediator who acts as a neutral third-party to facilitate discussion of the dispute.
Using mediation and other ADR methods can typically allow contentious probate matters to be resolved faster and at lower cost compared to relying on court proceedings. This non-confrontational approach also usually helps to keep conflict to a minimum, which can be important where the dispute is between family members who want to preserve a positive relationship going forwards.
Can you challenge a Will after probate?
This depends on the nature of the challenge. As mentioned above, Inheritance Act claims need to be brought within 6 months of probate being granted. Since probate typically takes longer than 6 months, the window for bringing an Inheritance Act claim will typically have expired by the time probate is complete.
However, as also mentioned above, if you wish to challenge a Will on the basis of fraud, there is no time limit for doing so, meaning you can still bring a claim long after probate has been completed.
Why choose Hedges Law for contentious probate?
Our Dispute Resolution department has very strong experience dealing with the full range of contentious probate matters, with the team taking its lead from our Head of Dispute Resolution, Toby Walker. Recognised as a leading practitioner in the area of Wills, inheritance and probate disputes, Toby offers clear, sensitive and highly effective advice and representation to our clients.
Toby is an ADR Group accredited mediator with an exceptional track record of helping clients to resolve even the most complex and contentious Wills, inheritance and probate disputes out of court. However, Toby also has a background as a Solicitor Advocate, with extensive Courtroom experience, meaning he can offer effective representation if court proceedings are the best option for achieving a fair outcome for you.
With two local offices in Oxford and Wallingford, we offer a highly convenient legal service for people in Oxfordshire and the surrounding area, while our leading expertise also makes us a popular choice with clients from further afield.
Hedges Law is independently regulated by the Solicitors Regulation Authority (SRA).