Probate and wills is an expert area of legislation, and within that, is Contentious Probate – legal speak for having a bun battle over an estate.
It is not uncommon for disputes to happen after someone has died and there is a variety of things that could trigger a dispute. One of the most common disputes is over the wishes in the will. Now that the testator is no longer around to clarify their intentions or the circumstances that lead to their decisions if the will is not clearly and precisely written it leaves the contents open to interpretation. There are several aspects surrounding a Will that could trigger a dispute.
The Will has not been validly executed
A Will can be challenged if the compliance process were not followed. For instance, two witnesses are required, and without this requirement being met, a Will is not valid. Unfortunately it does sometimes happen that a specialist writes a will negligently and a mistake made by them would need to be disputed in order to be put right.
The will was written when the person did not have mental capacity
If the person signing their Will did not have the mental capacity to make it or they weren’t able to be aware of the consequences of what was happening, there is legitimate reasoning to challenge its validity. You can help to prevent a challenge on the grounds of mental capacity by finding a doctor’s statement from around the time the Will was written and authorised, or if you are in the process of writing a will performing a mental capacity assessment to prove your ability to make a will. If there is not an assessment of mental capacity available it is possible for the will to be contested.
The will is forged or created under fraudulent circumstances
When there is reasonable suspicion of fraud or the will being forged. For example if a husband was to sign a will on his wife’s behalf. Signing her name himself would mean the signature is forged and the will would be considered invalid.
The will was written with undue influence
When there is reasonable suspicion undue influence, a Will may be challenged and that can easily lead to contentious probate. An example of this could be a child who “assisted Mum” to have a new Will written, which resulted in a change of that child receiving everything and the other children receiving nothing. Suspicion would also be raised if the will writer or witnesses to the will were to receive something from the estate upon death; this would be considered invalid and would not be fulfilled during the estate administration.
The will has not made provision for someone who was reliant on them whilst alive
There is also the possibility of the will being contested if it has failed to provide for an individual who was being financially supported by the deceased while they were alive. They can claim under the Inheritance (Provision for Family and Dependents) Take action 1975. People who could claim under this act could be a spouse, children, extended family members or cohabitee. However, there are many specific circumstances that are taken into account under this application.
In most cases dealing with contentious probate and going to court can be a lengthy and expensive process. In some cases, it is possible to come to an agreement through mediation in order to avoid expensive court fees. Mediation can also help to reduce tension in the long run and be less emotionally and financially draining. If a compromise cannot be met it is recommended to look for a specialist contentious solicitor.