Challenging a will before or during probate is becoming increasingly popular as a fee generator with some lawyers. Fighting a Will where you have no real grounds for doing so can be an expensive and frustrating exercise which costs everyone lots of money – apart from the probate lawyers, who nearly always make a handsome profit! Contentious Probate (as it is called) can be expensive – we prefer to see disputes resolved – but we do know some great contentious probate solicitors who will be pleased to assess your chances of success free of charge.
It is vital to use expert contentious probate firms
rather than those who have a general understanding of all sorts of areas of the Law, and also a firm that will say that your chances of winning are very low to non-existent. I am afraid to say that just being bitter about being left out has no relationship with whether you have a good case or not. Let logic rule the day, please.Be aware that it is preferable to consider raising a dispute at the earliest possible moment, as the costs are likely to be considerably lower if the case can be settled out of Court, and that is more likely to be accomplished BEFORE Probate has been granted (or better yet, before it has been applied for.)Do I have a claim against an estate or probate argument checklist: the Claim Checker provides a simple and reliable answer, whether you are defending or considering a claim.For first rate cases with claims in excess of £100,000, we MAY be able to find a no win no fee firm – but that does not mean you are taking no risk. If you lose, you could end up paying the other sides costs.
As disputing a Will (or contesting if you prefer) is something we often get questions about, here are a few comments about trying to overturn a Will or contentious probate.
Be aware that the time limit for disputing is generally 6 months from when probate is granted.
However, Judges may allow claims after this, typically if the claimant was not aware of the death.
1) Many Wills, especially homemade ones, are not valid in the first place, as they haven’t been properly signed and witnessed. If a Will needs a grant of probate, the Probate Registry will spot the issues, and then the Rules of Intestacy will apply. If the Will doesn’t need probate, this may not be spotted.
2) A Wills made whilst someone is not in a fit mental state to appreciate the nature and extent of what they own, or those whom they should consider benefiting can be often successfully disputed. A recent case widened the law on disputing a Will as the judge considered that the very recent loss of a spouse could impair the judgement of a testator.
3) In some cases Wills may not correctly show the wishes of the testator as it has been written badly or there is a clear mistake in it.
4) The Will is a forgery.
5) The testator was not aware that he/ she was signing a Will and so did not understand or approve the contents.
6) The Will had been cancelled. Usually by the writing of later wills. So many Wills get lost that we recommend www.WillCustodian.co.uk. The majority of forms just stick Wills in a vault and then forget about it, and that just is not good enough. Life, Tax and the Law move too quickly these days!
7) The Will has been altered without the proper formalities.
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Disputing a Will under the Inheritance (Provision for Family & Dependents) Act 1975
The act allows those who are dependent on the deceased but did not receive “reasonable financial provision” from the estate to make a claim.
The following may be able to ask for financial provision from the estate.
- A spouse or civil partner.
- A former spouse / civil partner who has not remarried / entered into a new civil partnership.
- A child of the deceased.
- Anyone who was treated as a ‘child of the family.’
- Anyone being partly or wholly maintained by the deceased – such as mistresses or toy boys!
The claim must be made within 6 months of the date of the grant of representation though the court MAY allow claims after this if satisfied with the reason for the late application.
A claim under the Inheritance (Provision for Family & Dependants) Act 1975 can only be made if the deceased died domiciled in England and Wales. (UPDATE – see also this page.)
If you would like professional help in disputing a Will, contact us in the first instance.
NO OBLIGATION probate dispute enquiry form
This will be passed to a suitably expert firm which will have a free, informal chat with you.
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Will disputes up 7 fold.
Will disputes, in just 5 years, have risen by seven times, it is reported by The Independent.Whether it is a result of increased wealth but hard times, compo culture or greedy lawyers, the fact remains that the number of disputes has risen astronomically – as do the costs.
The causes of Will disputes.
Will disputes are often caused by poorly thought-out Wills, which don’t take into account family sensitivities and realities. Step families, divorces, invalid Wills. Last Wills commonly ignore people who should have been considered, and perhaps favourably. Worse still no Will or an invalid Will may cut out your life partner totally, leaving them with no alternative but to take expensive legal action against (perhaps) your children. Not a great legacy to leave.Another common issue with Wills is that left-out beneficiaries allege that they were made when the person didn’t understand what they were doing (“mental incapacity”). Another is that there was undue influence – usually one of the beneficiaries has dragged the person whose Last Will is being made down to a solicitor and had it changed in their favour!Too may firms create Wills by asking one simple question “What would you like your Will to do?” That is a good question, but only if it is followed up with lots of others to explore family dynamics, assets and – of course – your wishes in detail. If you have a Will which may give rise to a Will dispute rather than create peace, then maybe you should contact us and commission a review of the Will. There is a lot which can be done, in advance, to avoid families being split by needless and painful Will disputes.Should you wish to contact us on either topic, please give us a ring or email via our contact page. There is more information about disputing a Will here.Free Probate Dispute Checker What is a Caveat? Contest a Will or Intestacy Problems with Executors etc When Promised Inheritances Fail to Appear Claims for Support
