Contesting A Will Before Probate
Typically disputes over wills arise in the following circumstances:-.
- Over the will itself – is it valid, did the testator (the person making the will) have capacity? was it forged?
- The amounts left in the will are they fair?
- The role of the Executors & Administrators when administering the estate – have they administered the estate correctly?
In a contested probate matter, the starting point is always to get hold of a copy of a will. A request should be made to the Executor. Once the will is obtained, consideration can be given to whether the will has complied with the formalities of the Wills Act 1837 which provide mandatory requirements that all wills must be signed, dated and witnessed by two persons. The witnesses to the will must not be beneficiaries. If a witness is also a beneficiary then the gift to that beneficiary will fail.
Unfortunately, a common feature of a most contested probate matters is the alteration of a will close to someone’s death. Given this issues as to whether undue influence has arisen inevitably arise as often the altered will maybe substantially different from previous wills, for example a close family may be excluded with the entirety of the estate left to a unknown person.
It is important to appreciate that the onus of proving undue influence falls upon the person alleging it and, therefore, there must be evidence to support an allegation. Cases of undue influence typically arise where the testator is often ill, weak either physically or mentally.
Amounts Left in a Will
Mere disappointment is not in itself sufficient to bring a claim against an estate. However a claim can be brought under Inheritance (Provision for Family and Dependants) Act 1975, if you have been financially maintained by the Deceased prior to their death.
Inheritance Act Claims
To make a claim under the Inheritance Act 1975, you must be a person within the categories of people listed under section 1 (1) of the Act. Those persons entitled to make a claim are the:-
- husband, wife or civil partner of the person who has died;
- the former husband or wife of the person who has died, if you have not remarried or given up your claim when you got divorced;
- a partner who lived with the deceased for at least two years immediately before the death;
- a child of the person who has died;
- a person who was treated as a child of the family by the person who has died when they were married (normally, a stepchild); or
- someone who was totally or partly maintained (supported financially) by the person who has died.
Very strict time limits apply to Inheritance Act claims, the Act providing that any claim must be made within 6 months of the Grant of Probate or Letters of Administration, being issued. No discretion is afforded and, therefore, it is very important to make a claim within the six month period.
Reasonable Financial Provision
If a claim is successful under the Inheritance Act, then the Court will order “such financial maintenance as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.
The level of financial provision from an Estate will always be subjective to the particular facts of the case and will involve the Court considering issues such as any obligations the Deceased had towards the Claimant prior to the date of death, the size of the estate, together with any other matter which the Court may consider appropriate.
If you believe you may have a claim, it is very important that you immediately seek advice as the time limits on submitting such a claim are very strict. Our Solicitor Helpline Number is 0870-067 7254 can assist you in making a claim.