Challenging a will before or during probate is becoming increasingly popular as a fee generator with some lawyers. Fighting a Will where you have no real grounds for doing so can be an expensive and frustrating exercise which costs everyone lots of money – apart from the probate lawyers, who nearly always make a handsome profit! Contentious Probate (as it is called) can be expensive – we prefer to resolve disputes peaceably – but we do have an arrangement with a great team of contentious probate solicitors who will be please to assess your changes of success for a relatively modest fee and (if they are good) may be able to do it on a No Win No Fee basis.
As disputing a Will (or contesting if your prefer) is something we often get questions about, here are a few comments about trying to overturn a Will or contentious probate.
Be aware that the time limit for disputing is generally 6 months from when probate is granted.
1) Many Wills, especially home made one, are not valid in the first place, as they haven’t been properly signed and witnessed. If a Will need a grant of probate, the Probate Registry will spot the issues, and then the Rules of Intestacy will apply. If the Will doesn’t need probate, this may not be spotted.
2) A Wills made whilst someone is not in a fit mental state to appreciate the nature and extent of what they own, or those whom they should consider benefiting can be often successfully disputed. A recent case widened the law on disputing a Will as the judge considered that the very recent loss of a spouse could impair the judgement of a testator.
3) In some cases Wills may not correctly show the wishes of the testator as it has been written badly or there is a clear mistake in it.
4) The Will is a forgery.
5) The testator was not aware that he/ she was signing a Will and so did not understand or approve the contents.
6) The Will had been cancelled. Usually by the writing of later wills. So many Wills get lost that we recommend www.WillCustodian.co.uk. The majority of forms just stick Wills in a vault and then forget about it, and that just is not good enough. Life, Tax and the Law move too quickly these days!
7) The Will has been altered without the proper formalities.
Disputing a Will under the Inheritance (Provision for Family & Dependents) Act 1975
The act allows those who are dependent on the deceased but did not receive “reasonable financial provision” from the estate to make a claim.
The following may be able to ask for financial provision from the estate.
- A spouse or civil partner.
- A former spouse / civil partner who has not remarried / entered into a new civil partnership.
- A child of the deceased.
- Anyone who was treated as a ‘child of the family.’
- Anyone being partly or wholly maintained by the deceased – such as mistresses!
The claim must be made within 6 months of the date of the grant of representation though the court MAY allow claims after this.
A claim under the Inheritance (Provision for Family & Dependants) Act 1975 can only be made if the deceased died domiciled in England and Wales. (UPDATE – see also this page.)
If you would like professional help in disputing a Will, contact us in the first instance.