Contentious Probate is a Very Specialist Area – do NOT dabble!
Do I have a valid claim to challenge a Will?
(See the contentious probate claim checker.)The Claim Checker provides a simple and reliable answer, whether you are defending or considering contesting a Will or Intestacy. Please don’t start a probate dispute just because you are miffed. Judges need sound legal arguments to make decisions, so use the checker or the form below to see if you are likely to have the law on your side. Not taking specialist expert advice in this area is courting financial disaster, and few local firms have enough demand to employ the necessary specialist staff.
Our Free Guide to Probate is here.
Can I dispute a Will?
Here are some of the grounds for contesting a Will in England and Wales (please bear in mind this site covers issues in England and Wales – the law north of the border is totally different and in NI slightly different):
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Contesting a Will as you have unreasonably been left out of it.
A classic example would be a husband leaving a wife penniless – quite apart from the next heading, it is on the face of it quite unreasonable!
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Challenge a Will under the Inheritance Act (“The 1975 Act.”)
Wives, husbands and sometimes others may be entitled to expect reasonable provision under the Will. So might anyone who has been financially or otherwise looked after by the deceased. So if you provided rent-free accommodation for your old Nanny and then left her out of your Will and exposed to being thrown out onto the streets, she might have a potential probate dispute case. Similarly, obviously young children, maybe mistresses or whatever the male version of that is. Children have no automatic right to inherit, however. See Ilott v Mitson. We’re often asked if a stepchild can challenge a Will, and there is no reason why they can’t, given the right grounds (use the form below). Equally, leaving a person you have habitually provided for during your life – a disabled child, common law spouse, mistress, etc could potentially lead to a justified probate claim. Not that it is generally straightforward!
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Challenging a Will through Lack of Mental Capacity.
Contesting a Will under these circumstances is common. In effect, what you need to prove is that the person making it did not have enough understanding of what they were doing to be capable – under the Law – of making a legally valid Will. This is ONLY at the time the document was made and signed; a subsequent decline in mental capacity would not affect the validity of the document, though other issues might. It is far from easy to prove, and a probate dispute solicitor will find it easier to obtain crucial medical records than the potential challenger.
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Disputing a Will because of Undue Influence.
One of the most common reasons to contest a Will. You need to show that someone has wrongly influenced the person making it (the “Testator”) to their benefit or to the benefit of another person. Undue influence is not easy to prove in general. However, where the person allegedly influencing is a person on whom the testator (the person whose Will it was) is very dependent, it is perhaps easier to convince the Court. In some cases, the proof burden may be reversed, especially where the person concerned is a carer. More on Undue Influence.
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Contest a Will by Alleging Duress.
Another common reason for probate disputes. Where a Will is made “under duress” it means that the person was effectively forced to make it under threat (in the widest terms) of some sort – real or perceived. An example would be a beneficiary threatening to put the testator into a care home unless they leave them their cash! Surprisingly, solicitors often allow a beneficiary to be in the room when a Will is discussed, which could easily amount to “undue influence” as it is hard to disappoint someone in the room with you. Potentially useful grounds to challenge if evidence is available. Disproportionate gifts to carers are a common subject of probate disputes.
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Contest a Will or Intestacy because the Executor is behaving improperly.
Plenty of executors or administrators deliberately or otherwise do not follow the law when it comes to distributing to the correct beneficiaries, preferring to keep the money themselves. Or maybe sell a property well below market value, possibly to a friend or maybe on the advice of a less-than-honourable estate agent. Valuables often vanish – but sometimes the valuables are not actually valuable, and a bit of openness would have prevented there from being a problem. The trouble is that executors don’t have to keep beneficiaries or possible beneficiaries informed. Right at the end, the actual beneficiaries should receive an account of what has been paid out and brought in, but it may not be too accurate. This is a really difficult area and often does lasting damage to family relationships, even once the executor discovers they have been at fault. But it is best to raise the issues early.
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Wrongly witnessed Wills are generally invalid….
You can raise a probate dispute because the formalities of signing it were not complied with – for example; the witnesses were not both present at the same time with the testator when they signed the Will. This is a complex area as people fail to follow the very simple guidelines, and the Courts are called upon to decide if enough has been done to make it valid – or not.
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Challenging a Will due to Promissory Estoppel.
A classic example of this is the farmer who uses a child as cheap labour for years on the basis that they will inherit the farm and then leaves it to someone else. In effect, a contract exists between the farmer and the child that in return for cheap labour, the child will inherit the farm (or whatever it is.)
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Another Will found –
People are very careless with their legal planning affairs (if you don’t want to be, we suggest you visit this site to help avoid your will being contested as it isn’t found or is out of date!) Each successive new Last Will and Testament normally cancels the previous one automatically. Still, often people forget where the old one is kept (and indeed the current one), so the wrong Will may be found initially. So, one set of executors may, in all innocence, try to obtain probate on an old Will. When the correct one turns up later, there are clearly grounds for contesting, and lots of extra time and money may be wasted! It may be worth considering doing your own Will search.
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Has the Will been invalidated?
This can be a reason to contest a Will. The commonest issue is that the Will has been cancelled by a subsequent marriage as it was not (clearly) made in expectation of that marriage. People can live together for years, having made their Last Wills in the early days – then get married, which will usually cancel them. If the Wills are not brought back to validity by way of a codicil reviving them, then the Rules of Intestacy may well apply and have a quite different result from that intended. Foreign Wills often accidentally cancel UK ones and vice versa. Again, a Will Search may throw up a latter Will.
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Will destroyed – could it still be valid?
Just because a Will has been destroyed does not necessarily mean it is no longer valid! There have been cases where Wills have been shredded and thrown into the rubbish, and they have remained legally valid, though often not without contesting the Will or intestacy that would otherwise have been brought into effect. The general presumption is that it was destroyed deliberately by the testator. We recommend the Peace of Mind Service for greater security, reviews and knowing when updates are needed and avoiding the situation where crucial documents are missing.
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Will Fraudulent
The Will may not even be genuine – pages may have been replaced, the signature forged, the witnesses co-conspirators. Handwriting experts may be called in.
How to challenge a Will or Intestacy – if it makes sense to do so?
Like most things, you can contest a Will without professional help. However, contentious probate is a very complex process, and it can end up being pretty personal and vicious, too. If you get it wrong, it is very easy to end up paying the other side’s costs, even if you win! Most people would prefer to make it less personal by employing an experienced, contentious probate lawyer. Keeping the family together should always be a consideration – people are raw and do not always react reasonably when anyone challenges a Last Will and testament.However, contesting a Will is sometimes a complete waste of time as it can bankrupt the estate or the person the Judge considers does not have a well-thought-through claim to challenge a Will. So we recommend paying for a professional review before you waste (potentially) tens of thousands of pounds or more with little prospect of success.
Who pays if a Will is challenged?
Who pays for the contentious probate process is not straightforward, though it is within the judge’s decision if it goes to Court. The Judge will weigh the decision and award costs as he or she thinks fit, so even a winner can end up paying costs. A claim which is merely wishful thinking is likely to result in both sides’ costs being awarded against the wishful thinker, so don’t challenge a Will in Court just because you think it is unfair – that is not in itself a ground for successfully contesting a Will.
Contentious Probate Solicitors near me.
This is a common search when there is a potential probate dispute, but be aware that a small minority of solicitors are probate experts, and very, very few are experts on contentious probate. It really makes very little difference these days where the firm is located; that is why were are fussy about the firms we introduce you to.
No Win No Fee Contentious Probate Solicitors.
The costs can be very high, so no win no fee solicitors will only accept very good claims, they have to be pretty much a racing certainty, and for a sizeable amount. So, the claim would normally have to be worth £100,000 plus. We are happy to take the details and pass them on to someone who may consider taking it on for you. Another option for financing probate disputes. Always bear in mind the possibility that the Judge will award costs against you, so you may not have to pay your own legal fees, but you could end up paying the other side’s costs as well as your own.
Can I challenge a Will after Probate has been granted?
Many Will changes arise after probate has been granted for the simple reason that the facts are often unknown before that as the executors chose not to make available full details of how the estate is to be distributed. Nor are they required to. But the document becomes public property after the grant, and anyone can download a copy of both the Last Will and Testament and the Grant. But there is a time frame of 6 months in which claims are expected to be made, starting from the date when the Grant is issued. Claims after that time may not be considered unless a judge can be convinced there is a good reason for the late application, so it is also necessary to put in a standing search for the copies. But always remember that not every estate requires probate, so waiting for it to be issued may be a waste of time.
Concerns about the Executors? Highly Recommended: make a Standing Search
If probate has yet to be granted, a standing search should alert you as soon as probate has been granted so you can examine the Will (if any) and Grant at the earliest possible moment. But be aware it has to be renewed after six months. At the current time (November 2023), Probate grants may take anything between two and a half weeks and sometimes more than a year to be issued. You can use form PA1S to ask to be sent a copy of a probate if it’s granted in the next six months. This is called a ‘standing search’. It costs £3.I am no contentious probate expert, but it seems that waiting until probate has been granted and you have been able to obtain a copy of the Will (if any) and Grant is really taking a risk. The time available to put together a challenge and find the right contentious probate lawyers could be just too short to come within the standard 6-month window for Court action.
What is a Larke v Nugus Request?
A Larke v Nugus letter may be sent when there is a dispute with a Will and the purpose of the letter is to gather as much information about the preparation and circumstances behind the creation of the Will as possible. The idea is to get as much background information about the preparation of the Will as possible from the firm that drafted it.Information that should be provided in response to the Larke v Nugus include:
- The relationship between the advisor and the Testator.
- Details on how the instructions were given and who was present at the time.
- Information on how mental capacity was established and documented.
- Earlier Wills, how does the new Will differ from earlier Wills and for what reason.
- Whether the information provided to the testator was explained and understood.
- The execution of the Will, who was present and where it took place.
This information will assist an informed decision as to whether any issues surround the document’s validity. Often, it will be clear that everything is in order.
Claims for Small Inheritances under £10,000.
This is offered as potentially helpful and is not within my area of expertise. If the executor has refused to pay you an inheritance which is under £10,000 – and specific legacies are paid out before the residuary legatee (in English, the residuary legatee/s are the people who get the remainder of the estate after and specific gifts (legacies) in the Will. Sometimes, the specific gifts will use up all of the estate, and the remaindermen (more jargon – read as residuary legatees!) might get little or nothing and be tempted not to pay out the specific legacies – which they are required to do if there is enough money. So assuming you know what your legacy is and it is readily convertible to a financial value of less than £10,000 then you may be able to access the confidential telephone mediation service offered by the Court Service (not the Probate Registry) if you issue your claim at court, and this is defended. A court fee is charged when you issue any claim, but no separate charge is made for the mediation.
What is the success rate of contesting a Will?
There is no real answer to that: sometimes, it will come down to whose testimony the Judge believes. The more actual evidence you can produce, the better the chances of success. But make sure your evidence will stand up to scrutiny. A written statement by a witness who refuses to testify in Court is less valuable than one where the witness is happy to be cross-examined. But sometimes, the cross-examination will reveal matters which go against your case.The second biggest contributor, other than the truth of your claim, is having a specialist solicitor on your side who will thoroughly test and try to reinforce your claim. Contentious probate is a very specialist area, not a prudent place for the average High Street solicitor to gather adequate experience of these types of claims at your expense.In some cases, a specialist contentious probate dispute solicitor may save you from potential massive expense by pointing out that your chances of success are almost non-existent, and your chances of ending up paying both your own costs and those of the other side are high. Bills for cases which do end up in Court are typically well into 6 figures: £100,000+_. Grieving people are not always ready to make a logical decision, and in a Will dispute, that can be a financial disaster.So please ensure you talk to a real expert, and don’t interview lawyer after lawyer until one agrees to take your money because it is not just your own costs you are at risk of paying.
Is it Easy to Challenge a Will?
On the face of it, it is easy to raise a Will dispute, and many people will just go ahead, with or without advice, and enter (put in place) a caveat: that sounds like an attractive and cheap option. It may be the right step to take, but three things are certain:
- It will delay probate, probably for a long time.
- It will upset the executors and beneficiaries, who may then be less willing to agree to adjustments to the challenger’s benefit.
- The other side will come back demanding that you justify your challenge (a “warning“), and you won’t have time to put together a watertight case in the few days you have to “put up or shut up.”
What is the least expensive way to settle a Will Dispute?
Probably through a specialist Mediation service if both sides are willing to do so and to save potentially tens of thousands of pounds. Try the triage system offered by the enquiry form on this page: you have nothing to lose at this stage, and an informed decision is much wiser than an emotional one which may cost you your home.
Should I go for No Win, No Fee?
Yes, it is possible to get legal help with probate on a no-win no-fee basis. This is also known as a conditional fee agreement (CFA). Under a CFA, you will not have to pay your solicitor’s fees if you lose your case. However, if you win, you will have to pay a substantial success fee, which is typically a percentage of the amount you recover.
To qualify for a no-win no-fee arrangement, your case must be pretty much open and shut. The solicitor will assess your case and advise you whether no-win, no-fee is possible – usually, your case is not sufficiently watertight for the solicitor to risk potentially tens of thousands of pounds of his or her own money.
Here are some of the factors that the solicitor will consider when assessing your case for a no win no fee arrangement:
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- The strength of your case
- The amount of money you are seeking (for no-win no-fee it will have to be getting on for at least £100,000 generally).
- Your financial circumstances.
- The complexity of the case.
If you are eligible for a no-win no-fee arrangement, it can be a great way to access legal help without having to worry about the cost. However, it is important to remember that there are still some risks involved, such as having to pay the other side costs – often well into six figures if you lose, perhaps because something comes out you were not aware of and blows a hole in your watertight case. No-win no-fee probate challenges can bounce back on you, and if it turns out you have inadvertently misled your solicitor, the no win no fee agreement could be void, and you could end up paying both sides’ fees which could easily exceed £200,000
NO OBLIGATION probate dispute enquiry form.
This will be passed on to a suitable expert firm, which will have a free, informal chat with you.
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Who is a Contentious Probate Solicitor?
The typical Google search for professional contentious probate help is “contentious probate solicitor near me.” Surprise, surprise, many local firms will have that and 20 or so other “areas of expertise” on the website. But the fact that they offer contentious probate and they are solicitors does not make them – necessarily – experts in the area. So, just instructing a “contentious probate solicitor near me” may be rather potluck.So what do you look for when you are looking for a solicitor for contesting a Will or – if there is no Will – to contest the distribution under the Rules of Intestacy?
- At least one solicitor who specialises only in probate disputes, two really. They need to be up to speed with the deadline, the Special Court procedures and the hazards. Miss one hazard and your client ends up paying the other side tens of thousands of pounds in costs.
- They should NOT immediately rush out to sue the other side; specialist mediation is a vital and relatively inexpensive solution: it won’t make the solicitors a fortune, but it could save their clients a great deal of time and worry. If the other side refuses mediation – without good cause – that could be good for you.
- Membership of the Association of Contentious Trust and Probate Specialists (ACTAPS) with the relevant qualifications is a good sign.
- Full STEP membership is a good sign but it doesn’t necessarily mean they have spent any time on Contentious matters.
- No-win no-fee is something of an illusion – you can still end up paying the other side’s costs whilst, in most circumstances, not having to pay your own,