Wills are confidential documents while someone is alive so often relatives and friends can be surprised when they eventually discover the contents. That can lead them to taking legal advice on trying to challenge the Will.
Contentious probate or Will disputes can arise either when someone (usually a beneficiary) believes the executor of the estate is not following the wishes of the deceased or when someone disputes the validity of the Will itself. Examples include:
If the Will has not Been Properly Prepared and Signed
For a will to meet prescribed legal standards, the making of a will must:
- Be made by someone over the age of 18
- Be made by a person that is sound of mind
- Be made without the influence of another
- Be signed by both the testator (person making the will) and two witnesses who should both see the testator sign the Will.
Using a properly qualified person to advise upon and prepare the Will should avoid the risk of the Will validity being questioned.
If there is a Problem with Probate
The executor, or executors, are appointed by the testator and are often people who are trusted to administer the deceased estate without prejudice or bias. They can also be a professional, such as a solicitor or firm or could be a combination of both. It is often the case that administrating the deceased’s estate and affairs is a complicated process that can become overwhelming for those without the experience of managing such processes.
There can be several examples of contentious probate that include:
- Executor negligence - it is natural that administration of an estate may take some time, however, if the executor appears to be struggling with the administration it is best to broach this tactfully, offering support rather than causing more conflict. Agreeing on professional assistance to help with the estate administration would be the best course of action.
- Obstruction or delay – again, this is impacted by how long administration can take. It is useful to know that an executor is not bound to distribute the estate to beneficiaries in less than six months and that six to nine months is a fair estimation for the completion of a straightforward estate.
- Where a trust exists – It’s not uncommon for testators to appoint the executor as a trustee to a trust made by the will and the process of setting up a trust can cause delays in the administration of the estate.
- Fraud – Unfortunately, probate fraud is not a rare occurrence and suing after the event isn’t always met with remuneration. If you suspect the executor of fraud, it is important you seek legal advice immediately.
Contested probate can often be avoided by appointing a professional executor. Appointing more than one executor is also advisable, as it not only increases the potential productivity but helps keep a balanced, unbiased narrative throughout the estate administration process.
If beneficiaries wish to remove an executor, the initial step would be to write to the executor asking for an account of the administration of estate and if that does not prove to be satisfactory, the beneficiary can apply to court to have the executor removed and a substitute appointed. However, the court will not do so lightly and would normally only act on this if an executor is physically or mentally incapable, holds a criminal conviction or if there is proof of serious misconduct on the executor's behalf.
Inheritance Act 1975
The third challenge relies upon the Inheritance (Provision for Family and Dependants) Act 1975, to give it its full name. This provides that certain categories of people can ask the court to change the terms of the Will. The persons allowed to attempt such challenges include spouses, civil partners, children and people who were financially supported in some way by the deceased in the period leading up to their death.
The rules surrounding these challenges are very technical but in summary, to bring a successful challenge to a Will under the Inheritance Act, the Court must be satisfied that the person challenging did not get reasonable financial provision under the Will and that their financial situation is such that they deserve increased provision.
These sorts of disputes can often be resolved in correspondence but if court proceedings are necessary, they take place in the civil courts.
Turning to knowledgeable litigation solicitors with experience of Will disputes and contentious probate in such circumstances can make the world of difference to the outcome of an Inheritance Act challenge.
QualitySolicitors Parkinson Wright specialises in civil litigation, including commercial and contractual disputes, matters involving employment law and claims challenging Wills. The firm has experience with claims in the Supreme Court, Court of Appeal, High Court, County Court and Employment Tribunal.
Mark Heath Partner and Frances Woods, Partner and Head of Litigation are Registered Contentious Trust and Probate Specialists and are members of the Association of Contentious Trust and Probate Specialists. (A.C.T.A.P.S.)