With over 150 years of experience in handling contested Wills and Probate disputes, we can give you informed and authoritative legal advice.
Our Wills and Probate Solicitors understand that Inheritance disputes and Executor disputes can be emotional, personal and very complex.
Our Solicitors can:
- Clearly identify where you stand realistically
- Help you make a claim if you've been left out of the Will
- Help you make a claim if you've been left out because someone died without a Will (Intestate)
- Offer mediation to try to come to a fair and flexible resolution without the stress of going to Court and the fees that come with it
- Challenge a Will that seems to be invalid, forged, made under pressure or when the person lacked mental capacity
- Defend a claim against the Estate made by another person
Contesting a Will and Contentious Probate
Contesting a Will
There are several grounds on which the validity of a Will may be challenged. These can include where the Will hasn’t been properly executed in accordance with the legal formalities for making a Will, or for other reasons relating to the circumstances in which a Will was made or changed.
Types of cases we can advise on to contest a Will include:
- Lack of capacity, for example, if the deceased was suffering from Dementia or Alzheimer’s when the Will was made
- Lack of knowledge and approval, for example, where there are suspicious circumstances that suggest the deceased did not understand or approve the Will
- Undue influence, for example, where the deceased was coerced to make the Will
- Forgery and fraud, where the signature on the Will isn’t genuine
- Due execution, where the Will hasn’t been signed in accordance with the legal formalities
Probate Disputes, known as Contentious Probate, involves disputes relating to challenging a Will or the conduct of an Executor or Personal Representative in administering a deceased’s Estate or Probate; whether you are a Beneficiary or an Executor.
We can deal with Contentious Probate claims relating to:
- Challenges to a Will
- Challenges to a Will for provision under the Inheritance (Provision for Family & Dependants) Act 1975 where someone believes they haven’t been provided for or have been left out of a Will unfairly
- Disputes between or with Executors or Personal Representatives
- Mistakes made in a Will
Executor / Personal Representative Disputes
Executors and Personal Representatives are responsible for collecting in the assets, settling liabilities and distributing assets to the correct Beneficiaries in accordance with the deceased’s Will or the Rules of Intestacy (inheritance law).
Executors and Personal Representatives have extensive powers and they also have duties to the Beneficiaries of the deceased’s Estate.
If Executors or Trustees breach their duties or fail to progress the administration of the Estate, then they can be removed and replaced and may be held personally liable for any loss suffered.
As an Executor or Personal Representative, you could also face challenges to the validity of a Will or claims from relatives who feel they have been unfairly left out of a Will or not adequately provided for on Intestacy under the Inheritance (Provision for Family & Dependants) Act 1975. See Inheritance Act Claims.
The cases we can advise on against Executors include:
- Unnecessary delay in dealing with the Estate
- Failure to properly administer the Estate and provide information
- Selling property or assets for below market value
- Paying money to the wrong person
We can also defend claims against Executors or Personal Representatives.
Claims under the Inheritance Act*
*Inheritance (Provision for Family and Dependants) Act 1975.
Our Contentious Probate Solicitors can help you if you believe you’ve been left out of a friend or family member’s Will unfairly, or if you don’t think you’ve been left enough or what you were promised; you may be able to make a claim for reasonable financial provision.
We can also help you make a claim if you haven’t inherited because of Intestacy, where no valid Will was made.
People who can make a claim under the Inheritance Act include:
- Wife, husband or civil partner
- Former wife, husband or civil partner who hasn’t remarried or formed another civil partnership
- Someone who had lived with the deceased for at least 2 years before their death
- A child
- A person treated as a child of the deceased
- Anyone else being financially ‘maintained’ by the deceased.
Funding Your Case
In most circumstances, you can fund a disputed Will or contentious Probate case on a No Win, No Fee basis. In Wills and Probate disputes, there are two types of No Win, No Fee agreement:
- Conditional Fee Agreements - If your claim isn't successful, you won't have to pay our costs. If you’re successful, you pay a 'success fee', which is based on a percentage of our costs. The rest are recovered from the other side or the Estate, rather than you personally.
- Damages Based Agreements - You don't pay our costs if you lose, and if you win, our costs are recovered by taking a percentage of the award you receive.
In some situations, an application can be made so that the Estate pays the costs of a dispute. This can be helpful where someone has been disinherited and left in financial difficulty.
Our Contentious Probate Solicitors can also represent you if you have Legal Expenses Insurance and your insurance company agree to our appointment.
We also offer a fixed fee service for specific legal advice or writing letters.
Frequently asked questions
- Who can make a claim against an estate?
The law in England and Wales sets out several types of person who can apply for a Court Order to be provided for by an Estate. If you're:
- The spouse
- A former spouse who hasn't remarried
- A child
- A stepchild by marriage
- Anyone else who was being maintained by the deceased up until their death
- I'm separated from the deceased but not divorced - what am I entitled to?
Quite often if an inheritance claim is made by the separated spouse of the deceased, the Courts will make an Order which is similar to a divorce settlement. This means that you can get a financial settlement that is of similar size to a divorce settlement.
- What if the deceased didn't leave a Will?
If someone dies without leaving a valid Will, they’re legally known to have died “Intestate”. Inheritance laws known as the Rules of Intestacy then dictate how the Estate is distributed. Only married or civil partners and some other close relatives can inherit under these rules. However, it can be appropriate to make a claim against the Estate. Sometimes this can be done by the agreement of the family, but it's important to tread carefully to avoid family disputes.
- Do I have to go to court?
You don't always have to go to Court to get provision made for you. Sometimes, we can offer mediation as a way to resolve the dispute without the stress or costs of going to Court. Mediation can often be a quicker and more sensitive way to resolve disputes.
- What can I do if my gift from an estate is being challenged?
If someone else makes a claim against the Estate, it can affect the gift you were expecting to receive under the Will or intestacy rules. If you expected to receive 25% of the Estate, but someone else has made a legal claim which goes unchallenged, this will reduce the size of the 25% share.
- What can I do if a claim is being made against me as an executor?
Executors play an important role in dealing with the Estate of the deceased. The role of the Executor brings about several responsibilities. Executors have a duty to:
- Collect and preserve the Estate
- Pay the debts of the Estate
- Distribute the Estate according to the Will
A claim against an Executor can be on the failure to perform any of these duties.
- What can I do if the claim could have been avoided?
Sometimes a claim against the Estate could have been avoided, but because of an error by the person who drafted the Will, you've received a smaller gift from the Estate than anticipated.
In circumstances like this, it may be possible to make a claim against the person who drafted the Will.
- Can I contest a Will if I’m not related to the person who died?
Yes. Under the Inheritance (Provision for Family and Dependants) Act 1975, you can potentially make a claim if you:
- Cohabited with the deceased for at least 2 years before their death
- You were treated as a child of the deceased
- You were being financially ‘maintained’ by the deceased
Each case depends on the facts and we’d require detailed information as to the nature of your relationship, the financial support you received and your needs.
- Do I have a legal right to inherit from my parents?
In England and Wales, there’s no automatic legal right to inherit from your parents.
However, if you’ve been left out of your parent’s Will or believe you’ve not been left a fair share, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Each case depends on the facts and we’ll require detailed information on the nature of your relationship and any reasons given for you being excluded, as well as your financial needs and those of any other Beneficiaries.
If you’ve been left out of a Will or believe you’ve not been left a fair share, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you meet certain criteria.
For example, were you married to or in a relationship with the deceased? A child of the deceased or were financially dependent on them? The same applies if the deceased died without a Will.
- Can I claim if I was promised something but I’m not named in the Will?
You may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you were financially dependent on the deceased or acted to your detriment on the basis of the promise, or if a promise was made in contemplation of death. But these cases are rare and will depend on the specific facts.
- Can stepchildren make a claim under the Inheritance Act?
Yes. A stepchild may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you were treated as a child of the deceased.
- I’m an executor/beneficiary of a Will that is being contested. What can I do?
As an Executor of a Will, you should seek to remain neutral in any Will dispute, and seek instructions from the Beneficiaries and get legal advice.
If you’re also a Beneficiary, there’s a potential conflict of interest and therefore it’s advisable to seek legal assistance, but as a Beneficiary of a Will, you may play an active part in any proceedings as your share of the Estate could be adversely affected by any claim.
- My partner has died without a Will. Can I claim?
If you’re married or in a civil partnership, you should inherit under the Rules of Intestacy. Depending on the size of the Estate, you may not inherit everything. If you consider that you’ve not been sufficiently provided for, then you may also have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
If you weren’t married or not in a civil partnership, you don’t automatically inherit under the intestacy rules, but you may have grounds to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you cohabited with the deceased for at least 2 years prior to their death.
- How can I obtain a copy of the Will?
There’s no requirement to register a Will so there is no central register of all Wills made. There is a registration service, but this will not cover all Wills. If a Grant of Probate has been obtained, you can apply for a copy of the Will or if no Probate has been applied for, you can obtain a standing search at your local District Probate Registry and obtain a copy of the Grant and the Will when lodged.
However, in some cases, a Grant of Probate may not be required or obtained and it may be difficult to obtain a copy of the Will unless you know who the Executors are, but then they are only obliged to provide a copy to the Beneficiaries of the Will.
In cases where someone is not a Beneficiary, there is no entitlement to have a copy of the Will.
However, in certain circumstances, you may be able to get a copy of the Will if doing so is going to assist in resolving a dispute between the parties. You may also make an application to the Court for disclosure of certain documents or information if the Executor fails to co-operate or if you know who holds a copy of the Will.
- What can I do if I believe the executor of a Will isn’t acting properly?
In certain circumstances, the Court may remove or substitute an Executor of an Estate. Reasons may include the Executor’s failure to administer the Estate in a timely manner or at all.
- How do I stop an estate being administered if I want to contest a Will?
Should you wish to challenge the validity of a Will, you can enter a caveat at your local District Probate Registry by post or in person which prevents a Grant of Representation being issued. The application costs £20.00 (at the time of publishing).
The caveat will last for 6 months unless you extend the time period or Court proceedings are commenced.
- I’m worried about being an executor - how can I avoid claims?
As an Executor, you have a duty to collect in all assets, pay debts and tax and distribute the assets to the Beneficiaries in accordance with the Will. You are in a position of trust and must act at all time in good faith and for the benefit of the Estate and Beneficiaries and any breach of your duties could result in a claim against you personally liable for any losses.
You should seek legal assistance to administer the Estate if you’re unsure how to deal with any aspect of the administration and you’ll usually have the right to instruct Solicitors to assist you under the terms of the Will.
- Will I have to go to court or are there alternative ways to resolve a dispute?
Court proceedings should be a last resort but sometimes they are necessary if the parties cannot reach an agreement.
Alternative Dispute Resolution (ADR) is encouraged by the Courts and the parties should try to reach a resolution. Alternatives to Court include mediation and negotiation, but these require cooperation from both sides.
Parties are encouraged to explore all alternatives to Court action and if one party unreasonably refuses to engage in Alternative Dispute Resolution, then they could be ordered to pay their opponent’s costs.
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Simpson Millar is a national law firm with over 500 staff and offices in Bristol, Cardiff, Kingston-upon-Thames, Lancaster, Leeds, Liverpool, London, Manchester, Morecambe and Southport.