Will disputes: your questions answered

When someone dies, their Will should set out how they wanted their estate to be dealt with. But questions can sometimes arise about the Will itself, the way an estate is being distributed or whether it fairly provides for everyone that it should.

When this happens, what may begin as a family disagreement can develop into a legal Will or inheritance dispute.

These disputes can be particularly difficult because they often involve close family members at a time of bereavement, when emotions are already high. They can also involve significant financial interests, property and complex legal questions.

Our contentious probate solicitors regularly advise individuals, beneficiaries and executors involved in disputes concerning Wills and estates.

Here are some common questions we are often asked by clients:

What is a Will dispute?

A Will dispute, sometimes referred to as contentious probate, is a disagreement concerning the validity, interpretation or effect of a person's Will, or the way their estate is being dealt with following their death.

This might involve someone challenging the validity of a Will, disputing how an estate is being administered or making a claim for financial provision from an estate.

Not every disagreement will result in a legal claim. Whether there are grounds for a dispute will depend on the circumstances and the evidence available.

Can anyone challenge a Will?

No, there does need to be a legal basis for challenging a Will.

For example, there may be concerns about whether the person making the Will had the necessary testamentary capacity, if the Will was properly executed or questions about its authenticity.

There may also be circumstances where someone can make a claim against an estate because they believe they have not received reasonable financial provision, even if the Will is completely valid. It is also possible to make a claim of this type where there is no will (known as “intestacy”).

The rules differ depending on the nature of the claim, so obtaining legal advice can help you understand your position and whether you may have grounds to bring a claim.

What are the most common reasons for disputing a Will?

There are several circumstances in which a Will may be disputed, including concerns about:

• testamentary capacity
• undue influence
• fraud or forgery
• whether the Will was properly executed
• whether a later Will exists
• whether the deceased's estate should provide further financial provision for someone who may be entitled to claim (often known as an “Inheritance Act Claim”)

The circumstances and evidence surrounding each case will be different. Understanding what evidence is available can therefore be an important part of establishing whether a claim can be pursued.

What if I have been left out of a Will?

Although we can appreciate the upset and frustration, being excluded from a Will does not automatically mean that you can challenge it.

However, certain family members and dependants may be able to make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

In some circumstances, people who have been left out of a Will may still be able to make a claim against the estate. This can include a spouse or civil partner, even where the couple had separated but not divorced, as well as certain partners who were financially dependent on the deceased. For example, someone who lived with the deceased and relied on them for financial support may be able to bring a claim, depending on the circumstances. Children who have been excluded from a Will may also be eligible to claim.

Eligibility depends on the individual's relationship with the deceased and their circumstances. There are also very strict time limits that can apply to these claims, so it is important to seek legal advice promptly.

Our solicitors can assess whether you may have grounds to bring an Inheritance Act claim or advise you if you are facing a claim against an estate.

I am a beneficiary and someone is challenging the Will, what should I do?

If you are a beneficiary and someone else is challenging the Will, you may need to defend the Will and respond to the allegations being made.

This can often be a stressful hinderance to the estate administration process, especially where you believe the Will accurately reflects the deceased's wishes.

A contentious probate solicitor can help you understand the claim, consider the evidence and advise you on the most appropriate response. Depending on the circumstances, it may be possible to resolve the dispute through negotiation or mediation rather than court proceedings.

Can an executor be involved in a Will dispute?

Yes, executors have responsibilities when administering an estate and may become involved in a dispute where the validity of the Will, distribution of the estate or conduct of the administration is challenged.

If you are an executor and become aware of a potential claim, it is important to understand your responsibilities and obtain appropriate advice before taking steps that could affect the estate, as a failure to do so could you make personally liable.  Often, but not in all case, the costs of seeking such advice can be deducted from the estate.

Does every Will dispute go to court?

No, in fact only a small percentage ever actually get issued in court, and an even smaller number end up in a trial. More often than not, disputes can be resolved through negotiation or mediation without the need for court proceedings.

However, when an agreement cannot be reached, court proceedings may be necessary. The appropriate approach will depend on the nature of the dispute, the strength of the evidence and the interests of those involved. When advising we would always consider what would be the likely outcome if the matter did proceed through the courts, and make recommendations to you accordingly.

Specialist legal advice can help you understand your options and consider the most appropriate way forward before deciding how to proceed.

How long do I have to challenge a Will?

There is no single time limit that applies to every type of Will dispute.

The deadline that is relevant to you will depend on the nature of the claim. Some claims have specific statutory time limits, while other challenges can be subject to different rules.

For example, claims under the Inheritance Act 1975 generally need to be made within six months of the grant of probate.

If you believe you may have a claim, obtaining legal advice as soon as possible is important as waiting could affect your ability to pursue a claim.

How can a contentious probate solicitor help?

A contentious probate solicitor can assess the circumstances of a dispute, advise on whether there may be grounds for a claim and explain the options available to you.

This might involve bringing a claim, defending a Will or negotiating a settlement. Where appropriate, alternative dispute resolution such as mediation can be considered. If court proceedings are necessary, your solicitor can guide you through the process and represent your interests.

At Owen White Catlin, our Wills disputes solicitors have experience in both individuals bringing claims and beneficiaries or executors defending them, giving us a breadth and wealth of specialist expertise.

We understand that disputes following a bereavement can be particularly sensitive. Our approach is empathetic, practical and straightforward, helping you understand your legal position and the options available to you.

Where possible, we will look at ways to resolve a dispute without unnecessary conflict or disruption. If court proceedings become necessary, we can also provide representation throughout the process.

If you are involved in a dispute over a Will or estate, contact our Wills disputes team to discuss your circumstances and understand the options available to you. Call Owen White Catlin on 0208 890 2836 or contact us via the OWC office closest to you.