Probate disputes: when or why to consider challenging a will

A summary of the grounds on which you could challenge someone's will

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What do I need to do?

The first thing you need to find out is whether the deceased has a will. The will should name one or more executors who can deal with the estate by collecting in the money, pay debts and distribute it in accordance with the will.

What is a grant of probate?

A grant of probate is a legal document which gives you authority to deal with the deceased’s estate.

You do not always need to apply for a grant of probate if all the property in the estate is owned as joint tenants, joint bank accounts, the amount of money is small etc.

Why contest or dispute a will?

There are certain circumstances where a will can be contested or challenged. Some common examples are:

  • The will was not executed properly
  • There are concerns as to the deceased’s state of mind at the time the will was executed
  • You were expected to inherit but have not been included as a beneficiary in the will or only to a lesser extent than anticipated
  • You were financially dependent on the deceased before their death but did not benefit after their death

What do I do if I do not think a will is valid?  

There are a number of grounds for contesting the validity of a will.

  1. Lack of capacity

The deceased must be of ‘sound mind’ when making their will. When considering making a claim for lack of capacity, medical evidence is important, this may be medical records or a report with regard to the deceased’s state of mental health at the time they made the will.

  1. Undue influence

At the time the will was made by the deceased there was coercion, manipulation, deception or intimidation by someone in order to influence the terms of the will.

  1. Lack of knowledge and approval

Even if a will appears to be executed properly and the deceased had testamentary capacity when the deceased signed their will, they must know that the document they are signing is their will, what its contents are and approve those contents.

  1. Fraud and forgery

When contesting a will this may be difficult to prove. This usually arises where the signature is not that of the deceased and that someone has signed it on their behalf. Forensic handwriting expert evidence is usually key when making this claim.

What if I have been cut out of a valid will?

There are two possibilities of contesting the will:

  1. Claim under the Inheritance (Provision for Family & Dependants) Act 1975

This act allows someone to make a claim against the estate where reasonable provision has not been made for them under a will. However, there are certain categories of applicants who can make such a claim; spouse or civil partner, former spouse or civil partner who has not remarried or entered into a new civil partnership, a child of deceased, anyone treated as a child by the deceased as their child, anyone who for two years immediately before the death of the deceased was a cohabitee, or anyone who was financially dependent on the deceased immediately prior to the deceased’s death.

  1. Proprietary estoppel

Where the deceased gave an assurance or promise to you during their lifetime that you would receive the estate or part of the estate upon which you have relied and in doing so have suffered some detriment or disadvantage. If upon the deceased’s death you did not receive the promised gift in the will, you may have a claim.

Should you consider contesting the validity of a will or making a claim against an estate, you should always seek legal advice in the first instance.

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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