Contesting a Will

What is Contentious probate?

Contentious probate or A Will dispute is when there is a dispute involving the administration of an estate, inheritance or the validity of a WIll.

What kind of disputes are contentious?

  • A dispute over the validity of the Will of a Codicil
  • A Claim of Dependence under the Inheritance (Provision for Family and Dependants Act) 1975.
  • A Dispute about the administration or execution of the Will
  • A dispute over the interpretation or ambiguity of the Will
  • A dispute about the authority or actions of the executor

What grounds can someone contest a Will?

  • Doubts over the validity of the Will due to the testator’s lack of capacity. When writing a Will the testator must be of sound mind and understand the consequences of the Will as they have written it.
  • Doubts over the validity due to incorrect or improper execution of the Will. A will must be signed by the testator in the presence of 2 formal witnessed who must also sign to say they witnessed the testator sign the Will. If there is anything to suggest this has not happened it could be claimed it was executed incorrectly.
  • There is evidence that suggests the testator was manipulated or coerced into writing terms in the WIll against their wishes. However, there must be significant evidence of a high standard when making this type of claim.
  • There is evidence of fraud or forgery. If the Will is a fake or the signature of the deceased has been forged.
  • Lack of financial provision for a dependent. If the will omits a person that was financially dependent on the deceased at the time of their passing. This could be a partner that the deceased was living with or a minor that the deceased was responsible for.

Who can contest a Will or probate?

  • The spouse or civil partner of the deceased
  • Child of the deceased
  • Stepchild of the deceased
  • Dependant of the deceased
  • Someone who lived in the same home as the deceased as if they were a married couple or civil partners and was financially dependent on the deceased.

Does contesting a will delay probate?

Contesting a Will can have significant delays on probate. When an estate is being contested there is often a lot of back and forth between both sides with mediation and negotiation. This is not something that happens during non-contentious probate and therefore adds to the time it will take for probate to be completed. Depending on the type of dispute and whether a resolution can be reached without going to court will effect how much of a delay to probate there will be. Contentious estates can take years to administer and in the worst cases decades.

If a caveat has been lodged at the probate office, an application for a grant of probate can not be issued until the dispute is resolved and the caveat lifted. A caveat can be placed multiple times and lasts for a period of 6 months.

How hard is it to contest a will?

Before contesting a will you need to establish under what grounds you will be making a claim and what time limits are associated with that type of claim. It is best to seek the advice of a professional to see if you have grounds to make a claim and the chances of your success before starting the process.

You should consider alternative dispute resolutions before pursuing a resolution through the courts. For example, mediation and negotiations. You should follow all Pre Action Protocol, which is there to try and encourage parties to resolve disputes without hostile litigation. If all negations fail you can begin court proceedings. Court proceedings can be long and expensive without a guarantee your claim will succeed.

Who pays the legal costs for contesting a will?

At the beginning and during the dispute each side is responsible for their own solicitor and legal costs.

If the dispute is able to be settled without going to court, through mediation and negotiation, it can be agreed amongst both sides who should pay the costs. If the dispute does go to court the judge will decide who will pay the costs, usually, the losing side will pay the winning sides costs although sometimes the costs can be paid from the deceased’s estate.

How long do you have to contest a will?

Depending on the type of claim will depend on how long you have to contest a Will.

  • If you are making a claim under the Inheritance Act or a claim for maintenance you have six months from when the Grant of Probate is issued.
  • If the claim is against the Will by a beneficiary the time limit is 12 years from the date of death.
  • If the claim is fraud there is no time limit.

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