DISPUTING A WILL
Disputing a Will comes under an area of law referred to as ‘contentious probate’. This is a specialist area and we strongly recommend that if you do wish to contest a Will you obtain legal advice from a solicitor.
When disputing a Will, the court will assume that it is valid until proven otherwise, therefore the burden of proof is on the person bringing the claim.
What makes a Will valid
A Will can be a complicated document, which requires careful drafting. In order for a Will to be valid, the following requirements must be satisfied:
• The testator (the person creating the Will) must have been 18 years or more at the time of signing the Will.
• The Will must not have been executed under any undue influence from any other person.
• The testator must have legal mental capacity in order to execute a Will; for example, there must be no evidence that the testator suffered from any mental illness which may have left them unable to fully understand what they were doing and the effects of their actions.
• The testator must have fully understood the meaning and consequences of their choices within the Will.
• Two people must witness the Will. These people must not be beneficiaries or spouses/civil partners of beneficiaries.
• If a beneficiary does witness the Will, they lose their right to receive a legacy. The rest of the Will remains valid.
• The testator must sign the Will in the presence of both witnesses.
• The witnesses must either see the testator sign the Will or must acknowledge his/her signature.
Grounds for a dispute
• Dealing with the loss of a friend or relative can be a difficult time, made worse if disputes emerge or if you feel that you have been treated unfairly.
• Normally, the deceased’s estate is shared among the different beneficiaries according to the terms of the will. You cannot generally dispute the Will simply because you feel that you should have received more, or that you had been promised a particular possession – unless you have a clear legal right to it (such as a contract).
• There are many grounds on which a person or beneficiary can challenge a Will:
• The Will is invalid for some reason
• A professional negligence claim against the solicitor or Will writer who negligently drafted the Will
• On the grounds that the deceased’s dependants or family did not receive “reasonable” financial provision in the Will
• The deceased may not have had sufficient mental capacity
• The Will was made by the testator under duress or undue influence
• The Will is fraudulent
• The Will was not made or executed validly; home made or DIY Wills are particularly likely to contain errors, be imprecise or be executed incorrectly.
• The Will contains improper alterations
• The Will has since been revoked
• A newer Will exists
• Assets or debts have been wrongly dealt with
• The executors are acting improperly in the way they administer and distribute the estate
• Disagreements can arise between the executors of a Will
If you feel that you may have a valid claim, you should take legal advice. You may be able to take immediate steps to help prevent assets being wrongly passed to other people. For example, “entering a caveat” at the Probate Registry can help delay the grant of probate (which allows the executors to take control of the estate). The most appropriate legal action will depend on your particular circumstances.
Often, the best approach will be to discuss your concerns with the executors and/or beneficiaries, and try to negotiate an agreed solution: for example, the beneficiaries might agree to change the terms of the Will in your favour using a Deed of Variation. If you cannot reach an agreement, going to court remains an option; your solicitor will be able to advise you on the strength of your case and the likely costs involved.
Time Limits
Any action taken in disputing a Will must be brought within 6 months from the date of the grant of probate. It is a good idea to lodge your dispute immediately prior to the grant of probate. This means ideally any claims should be brought within 6 months from the date of death.
If you are thinking of disputing a Will, you must be aware that the time limits are quite tight. As a result, we recommend you contact a specialist solicitor immediately to obtain appropriate advice.
Disputing a Will – what should I do?
The first step is to decide the reason/s for contesting the Will, these will then form the grounds on which your case is made. After you have established your reasons, a ‘caveat’ can then be lodged at the Probate Registry. This caveat prevents a grant of probate from occurring without a notification being made to you. If an injunction is granted against probate then it also halts any verification of beneficiaries under the Will. Therefore it is vital that a caveat is lodged before the grant of probate happens, if not it may be too late to contest the Will.
After you have lodged a ‘caveat’ the beneficiaries under the Will may counter-issue you with a ‘warning’ this applies whether you personally are a beneficiary or not. This warning means that they disagree with your claim and feel that you do not have any entitlement under the Will, or that they are satisfied with the validity of the Will and the divisions within it.
If ‘warning’ documentation is issued, you will need to decide whether or not to proceed with disputing a Will. You will have to consider that further action may lead to issuing legal proceedings and potentially a court case with inherent costs.
