At Pannone Corporate we understand that one of the most emotionally stressful times individuals will experience is when a member of your family or a loved one dies. That time is even more difficult if a dispute arises in relation to the deceased’s estate or their will.

Unfortunately, such disputes frequently arise as there are a number of ways to contest a will, which could give rise to a valid claim through the courts.

The legal process of contesting a will is often complex, meaning that clients require expert legal advice to assess the merits and validity of a claim. At Pannone Corporate we support clients through the process, both contesting a will and also when defending a claim in respect of a will. The objective is to guide clients to a positive conclusion as quickly and cost-effectively as possible.

Grounds for Contesting a Will

For a spouse, child, cohabitee or an individual who may have expected to have an interest in an estate, there are various grounds on which a will may be validly contested. Such claims may be brought by people excluded from a will or someone who has received less than they had been led to believe or had expected. The grounds under which a will can be contested include:

• – the will has not been validly executed (a will must be signed by the individual in the presence of two witnesses who must also sign the will in the presence of each other);

• – the deceased lacked the required mental capacity to create a will;

• – the deceased was unaware of or did not approve the contents of the will;

• – undue influence has been exerted upon the testator when creating the will (that is, what appears to be an otherwise valid will has been executed as a result of undue pressure by another individual, against the testator’s true wishes); or

• – the will is forged or otherwise fraudulent.

If there is merit to a challenge to the will on one of the above grounds, then a claim against the deceased’s estate can be raised, initially in pre-action correspondence and, if necessary, through the courts. The exact proceedings will depend on the remedy being sought.

Other Claims Against an Estate

As well as the above challenges to a will, there are other circumstances where a claim can be brought against an estate. These include:

• – a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which makes provision for a court to vary the distribution of an estate to a spouse, former spouse, child or other dependants, where the deceased has failed to make reasonable financial provision for that individual. This can apply to any estate, irrespective of whether or not the testator made a will;

• – rectification of a will: where a solicitor or will drafter has made an error in drafting the will so the will fails to reflect the express instructions of the testator.

Timescales for Claims Concerning Wills

Whilst there is no statutory time limit for contesting a will, any challenge to a will should be made as quickly as possible. The longer a challenge is left the more difficult contesting the will may become. It is important to, therefore, seek legal advice as soon as possible from the date of death, particularly if steps are to be taken to prevent the distribution of the estate pending the determination of the dispute.

It should also be noted that there is a time limit to issue court proceedings for an Inheritance Act claim, which is 6 months from the date of the grant of probate.

How to Contest

When contesting a will, the courts expect parties to set out their claims in pre-action correspondence. A carefully worded letter of claim should be sent to the executors setting out the basis of the claim. Steps may also be taken quickly to lodge a caveat at the Probate Registry, which will prevent a grant of probate (which is required to administer and distribute an estate) being obtained until a resolution of the dispute is reached. The restriction under a caveat lasts six months but may be extended where needed and if the situation calls for it. Seeking early legal advice will assist with this process and maximise your prospects of successfully contesting a will.

At any time in the dispute, it is open to the parties to attempt to agree with the settlement terms. Alternative dispute resolution (ADR) is now expected by the courts and parties should attempt to settle claims through correspondence, settlement meetings or formal mediations. Pannone Corporate is experienced in all types of ADR and encourages clients to reach a settlement if at all possible.

If an agreement cannot be reached, it may be necessary to seek a determination of the claim through the courts. A formal claim will need to be drafted and issued at the court, following which the other party will have an opportunity to respond to that claim. The court process then involves various stages before a final trial in which a judge will decide the claim.

Avoiding a long, drawn out, and expensive legal process when contesting a will is always preferable and we seek to work with our clients to achieve an early resolution if possible. However, this is not always possible and at Pannone Corporate, we aim to offer expert advice and support, guiding you through the dispute, mediation and legal proceedings should they arise. For further information, please call our contentious trust and probate team on 0800 131 3355 or contact them via email.

We all need to make a Will before we pass away. That way, we can ensure our wishes are carried out, and that the right people receive the right assets. However, there are some instances where friends or family members may wish to challenge the Will.

What is Contentious Probate?

In summary ‘contentious probate’ is where a party either seeks to challenge or defend the provisions of an individual’s last will and testament (Will).

An individual can either make a Will, in which case his or her assets will pass in accordance with the Will, or an individual can leave no Will in which case his or her assets on death will pass in accordance with the Intestacy Rules. An individual can seek to challenge the distribution of the deceased’s assets either under the Will or the Intestacy Rules. 

When is a Will Invalid?

When it comes to what is contentious probate, a Will can be found to be invalid (i.e. its provisions can be ignored) in certain circumstances, as follows: –

1. The testator did not comply with the requirements of the Wills Act in signing his Will and having his/her signature properly witnessed.
2. The testator lacked the sufficient mental capacity required to validly make a Will.
3. The testator did not understand that he/she was making a Will and therefore lacked the relevant knowledge or approval required.
4. The testator was unduly influenced in making the Will i.e. he was coerced against his/her wishes to make the provisions in the Will.

Such actions to challenge a Will are referred to as ‘contentious probate’ actions. What is contentious probate going to affect in terms of the Will? Well, this completely depends on the circumstances.

Another way in which the provisions of the testator’s Will or the distributions under the Intestacy Rules can be amended is if an individual seeks to bring a claim under the Inheritance (Provision for Family Dependants) Act 1975. This entails an applicant stating that they have not been left reasonable provision either under the Intestacy Rules or under the testator’s Will.

Dealing with contentious probate issues is incredibly stressful for all the parties involved. Bringing or defending such claims often follows quickly after the loss of a loved one when emotions are understandably running high. It is important for advisors to deal with such matters as quickly and as empathetically as possible. Court proceedings should be a last resort due to the unnecessary stress and costs of litigation. Advisors should seek to take the emotion out of such matters focusing rather on identifying the issues in dispute and seeking practical solutions as soon as possible. Mediations, where the parties meet to try to reach a settlement, are particularly effective in such cases.

If the issues are identified clearly and concisely at an early stage then a practical solution should be able to be found relatively quickly and without the need for Court proceedings.

If you’d like more information about how Pannone can help you, please don’t hesitate to get in touch.

It is a long-standing and fundamental principle of the law of England and Wales that a testator is free, by making a Will, to leave his or her estate in the hands of whomever they wish. The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) provides an exception to this rule and a legal route for those who feel they have not been adequately provided for by a deceased’s Will to make a claim against the estate.

A Will can be challenged on many grounds including lack of valid execution; the testator’s lack of capacity; lack of knowledge and approval; undue influence; and fraud/forgery. Claims under the Inheritance Act are made against otherwise valid Wills and are based on the Will not making adequate provision for certain categories of individuals (referred to below).

Necessary Conditions

The Inheritance Act outlines a number of conditions that need to be met before a claim can be made, in order to satisfy the court that the claim is valid. These include:

• the deceased was living in England or Wales at the time of their death
• the applicant is one of a restricted category of people who can bring these claims, including: spouses (and civil partners), ex-spouses (and ex-civil partners), cohabitees of over two years standing, children (including adult children) of the deceased, persons treated as a child of the family of the deceased by reference to a marriage or civil partnership, and any other persons who was being maintained in full or in part by the deceased at the date of their death; and
• any application must be made within 6 months of a Grant of Probate or Letters of Administration being issued by the Probate Registry.

If these conditions are met, then the court must make a decision regarding whether or not ‘reasonable financial provision’ has already been made for the applicant in the Will.

Factors the court will consider

When deciding whether to make an award, the court must have regard to a range of certain factors. These include, but are not limited to:

• the financial resources and needs of the claimant;
• the size of the estate;
• the financial needs and resources of other beneficiaries; and
• any other matter which the court considers relevant in the circumstances.

Orders of the Court

Following a successful claim under the Inheritance Act, the court can decide upon a number of orders, including:

• periodical payments or a ‘maintenance’ order;
• an order for a lump sum payment;
• sale or transfer of property order;
• an order of redistributing or acquiring property;
• variation of a prenuptial or post-nuptial settlement if the deceased was married.

If a claim is unsuccessful then the estate will be administered in accordance with the Will.

When considering a claim under the Inheritance Act, it is important that you seek the specialist advice of a solicitor and that you do so quickly. This is particularly the case as any claims under the Inheritance Act must be made within six months of a Grant of Probate or Grant of Letters of Administration were issued.

If you are considering making a claim under the Inheritance Act then you need the help of Pannone Corporate. We have an experienced team who act for claimants seeking to bring Inheritance Act claims, executors who face claims and also beneficiaries under Wills who may wish to contest a claim under the Act. For further information, please call our expert team of Will dispute solicitors on 0800 131 3355 or contact them via our online form.