Contentious Probate is the term used to refer to any dispute over how a deceased’s estate is administered. For example, there may be disagreement over the interpretation of a Will or whether it is valid, the valuation of assets, the appointment of Executors, or the way Executors or personal representatives have carried out their duties.
If you are concerned as to your entitlement under a Will, or the way an estate has been or is being administered, the following information should help you decide whether you might be able to make a claim. If you’d like to talk about your concerns, please contact us. We will provide clear advice on the avenues available to you and the best course of action.
Reasons for Contesting a Will
A person can leave money or property to whomever they choose in their Will. However, sometimes a Will is challenged – this process is called contesting a Will. Common reasons to contest a Will include:
- The Will does not reflect the wishes of the deceased because it was drafted negligently or contrary to the instructions of the deceased, which might mean a claim against the solicitor who drafted it.
- The Will was signed under undue influence, for example the deceased was coerced into signing the Will.
- The deceased lacked the necessary mental capacity to sign or to give instructions for a Will, e.g. the person was suffering from dementia or a similar mental illness when the Will was made.
- The Will has been drafted and signed incorrectly, which is often a problem with homemade and online prepared Wills. Even if a Will is valid, you may in limited circumstances be able to claim against the person who drafted the Will if they drafted it negligently.
- If you believe the Will does not make reasonable Financial Provision for you and you are eligible to apply to the court (see below).
Who can Contest a Will?
Anyone can challenge a Will, but where you are claiming that reasonable financial provision hasn’t been made for you in a Will, or where there is no Will (and the Intestacy Rules do not make reasonable financial provision for you), then the following people only can apply under the Inheritance (Provision for Family and Dependants) Act 1975:
- the spouse or civil partner;
- a former spouse or civil partner – who has not remarried or formed a new civil partnership;
- children who are not necessarily related to the deceased but have been treated as a child of the family;
- a partner who lived with the deceased for more than two years; and
- any other dependants.
In this case, you are not contesting the Will but trying to vary what it says.
A claim being brought under the Inheritance Act is the most common challenge to a Will. The Will may be perfectly valid, however one of the class of persons referred to above can bring a claim under the Act where they think that reasonable financial provision has not been made for them through the Will or through Intestacy. They can ask the court to redistribute the assets of the person who has died providing firstly that the court believes that reasonable provision has not been made for them, and secondly that (with the exception of spouses and/or civil partners) that they have a specific maintenance need.
What are the Time Limits for Making a Claim?
The time limit for bringing a claim depends on the circumstances. For example, although there is no statutory limitation for claims of revocation, a claim against a personal representative usually has to be made within 12 years from the date on which the right to receive the share or interest accrued. It’s also worth bearing in mind that although there is no formal limitation period for some types of Probate actions, the court will strike out any claim that it considers to be frivolous, vexatious or an abuse of process.
In respect of Inheritance Act claims there are specific time limits that apply. A claim must be brought within six months of the Grant of Probate being obtained or special permission has to be obtained from the court before a claim can be issued. The court rarely grants permission where that six month time limit has been exceeded so it is important to seek legal advice as soon as possible. If the six months has gone by then it is important to take action as soon as possible after the time limit to maximise the chance of getting permission from the court.
Why Choose Owen White & Catlin?
Owen White & Catlin have a number of solicitors and partners who have expertise in this area including Richard Land, our resident expert in contentious Probate and Inheritance Act Claims. Richard regularly lectures for Central Law Training to other solicitors on this subject. He can provide comprehensive advice on:
- how to contest a Will;
- who can claim;
- the bringing and defending of claims;
- what qualifies as a claim;
- the evidence required;
- the factors that are taken into consideration; and
- the responsibilities of Executors and the dealing of the estate during the claim.
We can also offer our services for Contentious Probate on a no win, no fee basis. This means we will not waste your time – we only take on cases we believe have a good chance of success. Our detailed knowledge of the basis of claims and court procedure can lead to an early, negotiated conclusion, saving both cost and stress.
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Contact our Probate Solicitors in London, Surrey and Middlesex
Established in 1921, Owen White & Catlin have been providing services throughout South West London, Surrey and Middlesex for many years. Our offices are staffed by teams of expert solicitors and support staff, making it easy for you to get in touch when you need us. Contact us using our online