The death of a loved one raises many complex, and often difficult, emotional and practical matters. Unfortunately, these can easily cause disagreements. There may be ambiguities in a Will that lead to different interpretations, an argument over the valuation of the deceased’s estate or uncertainty as to whether it is being administered properly. Whether these disagreements are between beneficiaries, surviving family members and friends, the deceased’s creditors or those responsible for the administration of the deceased’s estate (the executors), it’s vital to get specialist legal advice early on.
At Selachii, our tenacious lawyers have vast experience assisting clients resolve inheritance disputes. Our aim is to help them achieve the best possible outcome – we do this by using our extensive negotiating and advocacy skills, coupled with vast knowledge of the law and procedure, to design a case winning, tailor-made, strategy. We always aim to resolve inheritance disputes as quickly as possible and, if court action is unavoidable, our specialist litigators are ready to fight for our clients’ best interests. If you would like to know more about how we can assist with contentious wills and probate, please contact us.
Contesting a Will
The courts are broadly reluctant to interfere with the contents of wills, owing to their important status as legal documents that communicate our last wishes. However, it is also recognised that there are certain situations where it may be necessary to examine and overturn a will, particularly if it is evident that the will doesn’t truly reflect the deceased’s intentions.
For example, there can be many pressures put on the elderly to create a will that is partial or to change a fair one into one that no longer seems so. Not only can friends and relatives exert influence, but also charities have come under criticism over the pressure they can bring to bear on donors.
It is hardly surprising, therefore, that when the 'final will and testament' of many deceased people is revealed, its content can come as something of a shock, and hardly a day goes by without a story in the press concerning a dispute involving a will.
In such circumstances, it may be possible to challenge a will, provided allegations or claims are supported by strong evidence. Below we provide a brief outline of the legal grounds for contesting a will. If you require assistance to resolve an inheritance dispute, whether bringing an action or defending against one, please contact our specialist contentious wills and probate solicitors.
When Can You Dispute a Will?
There are four principal reasons why a will may be able to be successfully overturned:
1. The will has been improperly executed
Unless a will has been signed by the 'testator' (the person who wrote the will) in the presence of two witnesses who are not beneficiaries under it, it will not normally be valid. In a recent case, a will was ruled to be invalid because the signature of the testator was 'witnessed' by two people who were not present when it was signed.
Challenges on improper execution grounds are usually relatively straightforward as the evidence is normally factual.
2. The testator does not have 'legal mental capacity'
The testator does not have 'legal mental capacity' (i.e. their mental capabilities are not such that they can validly create a will)
The testator must be 'of sound mind' in order to create a valid will. This means that they must understand the effect of the will, must be able to weigh up the information used in determining the contents of the will, must be able to retain that understanding for long enough to make those decisions and must be able to communicate their decisions in some way.
There are many circumstances in which wills are contested on mental capacity grounds. When seeking to prove that a will has been created by a person who is mentally infirm, evidence of their mental capabilities at the time it was made (their subsequent mental capacity is not in point) will determine the validity of the will.
Challenges on mental capacity grounds depend critically for their success on the evidence that can be assembled regarding the mental capacity of the testator.
If you have a relative who intends to change or create a will who you suspect lacks mental capacity, obtaining medical evidence of incapacity as soon as possible is normally recommended.
3. The will was written as a result of 'undue influence'
A will is invalid if someone has sufficient power over the testator to the extent that they cannot freely exercise their independent will. These sorts of challenges are most common where a friend or family member ingratiates themselves with the testator to the extent that the testator loses the ability to think for themselves...which is usually followed by a new will in favour of the other person or someone connected with them.
Claims for invalidity owing to undue influence are often highly contentious and, again, depend heavily on the quality of the evidence that can be assembled. A will written under 'undue influence' is void.
4. The will makes inadequate provision
The will makes inadequate provision for a person who has been financially dependent on the deceased and who could reasonably have expected to benefit from it.
The Inheritance (Provision for Family and Dependants) Act 1975 allows a claim for financial provision to be made by a dependant of the deceased. This must normally be brought within six months of the grant of probate or letters of administration of the estate.
Successful defences of claims under this heading depend, in effect, on being able to show that the claimant was not a dependant. The legal effect is that the court will 'rewrite' the will to make whatever provision it deems appropriate.
What Happens if the Will is Voided?
If a will is declared void by the court, the last valid will written by the deceased will be admitted to probate. If there is no such will, the laws of intestacy will apply.
It is not uncommon for disputes to arise between beneficiaries and executors over the way the deceased’s estate is being managed. Whatever stage the administration is at, if these relate to serious acts or omissions, it may be necessary to bring or defend an application before the court in order to resolve the dispute. For example:
- if an executor is failing to keep proper accounts or mismanaging the deceased’s assets, it’s vital to take swift action to protect the value of the estate. This can be done by bringing an application to pass over, substitute or remove an executor;
- if a beneficiary or other relevant person is failing to disclose information needed to lawfully administer the deceased’s estate, an executor may need to take formal action if they are to avoid being held personally liable for material errors in the future. Options include asking the court to order disclosure, the production of documents or to make any other directions it deems necessary for allowing an executor to fulfil their duties;
- if there is a dispute as to the value of assets in the possession of beneficiaries, it may be possible to ask the court to order a formal valuation.
Inheritance Dispute Lawyers London
Selachii’s experienced London probate lawyers can help you on a wide range of issues, including helping you reduce your inheritance tax bill, creating a lasting power of attorney or obtaining a grant of representation. Experts in all areas of probate law, our solicitors will give you completely confidential advice on any issues concerning wills and inheritance.
Inheritance Dispute Guide
The distress following the death of a loved one can be greatly exacerbated by a subsequent inheritance dispute, for instance, an aggrieved relative claiming a share of the estate. Dealing with a loved one’s estate is a stressful and emotional time but if this is compounded by a probate dispute, it is likely to be far more difficult.
Disputed Wills and other inheritance disputes are on the rise, and the courts are increasingly bold in ruling in favour of claimants. If you are an executor, personal representative or a beneficiary of a Will, and a claim has been made against the estate, the specialist London probate lawyers at Selachii are available to give strategic but sympathetic legal representation.
What may lead to an inheritance dispute?
Probate disputes can involve claims against the estate for a number of reasons, including:
Lack of provision: a dependant of the deceased, such as a spouse or child, who claims not to have been sufficiently provided for by the Will (or under the statutory intestacy rules) can bring a claim within 6 months under the Inheritance (Provision for Family and Dependants) Act 1975. The court will take into account a number of factors before allowing such a claim.
The Will has not been properly executed: there are strict legal rules as to how a Will must be signed and witnessed. If those rules have not been complied with, it will be invalid and the intestacy rules will apply.
The deceased lacked mental capacity (or lacked knowledge or approval of the contents of the Will) when the Will was made. The law requires that an individual making a Will must have sufficient ‘testamentary capacity’ for the Will to be valid. The courts have ruled that even bereavement can render a person mentally incapable of making a Will. Where a Will seems ‘suspicious’, a claimant may bring a claim on the basis of lack of knowledge or approval. Put simply, the testator must know and understand the contents of the Will, and what will happen to his assets under the terms of the Will.
Fraud or undue influence: evidence of coercion or fraud must be produced to support such a claim. For instance, a Will might be shown to be fraudulent if a potential beneficiary was excluded that would otherwise have benefited on the basis of misrepresentations made by someone else.
How can inheritance disputes be resolved?
Inheritance disputes can lead to expensive litigation that can drain an estate of its assets, but litigation can be avoided by negotiating a settlement.
Our probate lawyers are highly experienced in probate disputes, and we strive to bring probate disputes to a swift resolution without going to court. Settling claims is cost effective, time efficient – and can reduce the distress many of our clients go through.
We advise our clients to settle inheritance disputes as early as possible through Alternative Dispute Resolution (ADR). Mediation, in particular, is a proven method of bringing the parties together to work towards a mutually agreeable settlement.
If mediation is unsuccessful, the claimant will then have to issue proceedings in court. However, most cases are settled before they get to trial.
How can we help?
Our specialist London probate lawyers deal sympathetically with any kind of dispute relating to wills and probate. At Selachii, we know how upsetting and challenging dealing with probate matters can be, particularly where a dispute is involved.
If you need to contest a will for whatever reason, we will be happy to match you to a specialist lawyer with extensive experience in dealing with contentious probate matters and inheritance disputes. Give Selachii a call as soon as you can so we can give you the advice you need and start working together towards a solution. We will also be able to discuss with you the different funding options available when it comes to contesting a will, including our affordable fixed fee solutions.
At Selachii, we understand how upsetting and challenging dealing with probate matters can be, especially when you are grieving for a loved one. Our calm, professional and friendly approach will take some of the worry and stress from you so you can concentrate on looking after yourself and your family. To make things easier for you, we can offer fixed fee solutions for matters involving wills, probate and inheritance. Find out how we can help you by calling us today.
How Selachii Can Help
If you are concerned about any aspect of creating a will or the validity of a will that has been or is about to be created, take advice from us, without delay. If the testator is living, it may be possible to put things right or to assemble the evidence needed to challenge a will later on.
If you’re facing a probate issue, either as a beneficiary or executor, we are also ready to assist you. We have vast experience bringing and defending contentious probate claims and always work to help our clients achieve the best possible outcome.
Selachii is a dynamic litigation law firm based in Kensington, London. We put the best interests of our clients at the heart of everything we do. We work with both businesses and private individuals, giving them legal advice and support which is unique to them and their situation.
We don’t believe in simply handing out one-size-fits-all solutions to problems. We will focus on your specific circumstances before working out the best and most cost-effective way of helping you achieve your aims.