Will Disputes and Contentious Probate
Contesting a Will
Coping with the grief and bereavement of losing a loved one is one of life's biggest challenges. Going through this process after a family member or friend has died is never easy, but matters can become even more difficult and emotive if there is an issue or dispute with the Will or Estate.
You may feel unfairly treated by the contents of a loved one's will or feel the deceased has failed to make adequate financial provision for those left behind. Alternatively, you may have had doubts about the mental capacity of the person signing the will or feel they were pressured into signing it by someone else. Our modern, complex families are causing some issues too. For example what if a person re-marries and leaves their estate to their new spouse and child from that relationship, but not the children from their first marriage? This can result in you wanting to contest a will (this process is also referred to as contested or contentious probate).
Clapham & Collinge provides a professional, highly personalised and sympathetic approach to help you achieve the best possible outcome to a Will dispute. Our specialist team of contentious probate solicitors can advise on all aspects of Will disputes, working quickly and efficiently to reach a settlement to enable you to move on.
What are your options?
Is the Will Valid?
There are rules for making a valid Will and if a Will has been made at home, using a kit or without a solicitor it might not have been done properly. If it is not valid, then the previous Will is used instead, if there is one that can be found. Otherwise the person will be considered to have died intestate and the rules of intestacy will apply.
Was the person 'of sound mind' when they made that Will? We call this having testamentary capacity. Modern advances in medicine and research have shown us that capacity can fluctuate, so a person might have capacity on one day and not on another. It means that they must be able to understand what they were doing at the time they made the Will, and they must have been able to understand in broad terms the size of their estate, and the effect of their Will.
If they were suffering with Alzheimer's or dementia, or perhaps a head injury or severe depression even, it may be that they didn't have the capacity to make a Will at that time. Or perhaps if they were suffering with memory loss, they might have literally forgotten about a relative who you would have expected them to remember in their Will.
Lack of Knowledge and Approval
A person might have capacity to make a will but might not, for whatever reason, fully understand or approve of what it says when they sign it.
With so many people now suffering from dementia or Alzheimer's and our growing elderly population, increasing numbers of elderly people are vulnerable to abuse. That abuse can include manipulation or financial abuse. We are seeing cases where elderly people with memory loss are persuaded to take large sums of money from the cash point, and they have no memory of where it has gone to.
If the Will appears to be valid and the person had capacity to make it, they could still have been influenced by a third party to make certain gifts for example.
Sometimes the manipulation can be prolonged and subtle, so that the person is influenced or persuaded to give money away in their lifetime or persuaded to change their Will. Sometimes it isn't until the person passes away that it becomes clear what has been happening.
There may have been fraud committed if, for example, someone forges a signature.
Perhaps you are suspicious that a partner, friend or family member has been manipulating the person to make a Will favouring a certain person, or has perhaps changed their Will to benefit them. Perhaps you think that this might be a case of fraud or elder abuse.
Inheritance (Provision for Family and Dependants) Act 1975
If the Will appears valid and the person knew what they were doing but it still seems unfair to you, it may be that you have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This act enables a claim to be made by certain people who feel that reasonable provision was not made for them in a Will. This will apply to a spouse, civil partner or former spouse or former civil partner, also to cohabitants, children (including adult children) or people treated as children and dependants of the deceased person.
You must act quickly if you think this applies to you as they are time limited and can only be made within 6 months of the probate, or letters of administration. Otherwise you will need the permission of the court to make a claim.
There are a number of factors to be considered and these are complex claims. It is always worth talking these through with an expert lawyer to understand what your options are
Are there other legal challenges that might help?
If you were living in a property with your partner, and you weren't married when they died, but had been paying the bills and living as if you were married, you may be entitled to an equitable interest in the property.
The property might be passing either by a Will or by the intestacy rules, but if you lived together you may be an equitable owner with rights and you may be able to claim your share of the property and only the remainder will pass by the Will or Intestacy rules. Evidence is the key to these claims so we recommend you talk though your situation with our specialist team of contentious probate solicitors.
Frequently Asked Questions
For guidance we have collated a list of frequently asked questions and answers for you. Of course your solicitor will be more than happy to answer any complex questions you have specific to your situation.
How do I find a copy of the Will?
When someone dies, their nearest family or friends normally look through their papers to find if they left a Will. Organised people tend to keep their Will with their bank statements or personal papers. Very often, they are stored at the family solicitor's office or at the Bank. This can greatly reduce the risk of a will being lost after it has been made. Check whether your solicitor charges for this service.
There is no central governmental Will register for Wills. This often surprises people. Relatives have to search to see if it has been stored at the person's house, and contact any solicitors that they know have been involved to see if one has been stored there.
In some cases they have to advertise the death by putting a notice in the London Gazette and contacting local solicitors to see if any have stored the Will. If a person moved around during their life, it may not be straightforward to locate a Will. There is a company called Certainty which charges £30 for their Will registration service. It is worth checking with them if you think a Will was made but still can't find it. Bear in mind, however, that registration with Certainty is not compulsory, so that a lack of a will on their register does not necessarily mean that there is no Will at all. If a Will cannot be found, we treat the person as having died without making one, which is called being intestate.
What if you don't agree with the choices being made by an executor? Or what if the personal representatives haven't been collecting in the assets of the deceased person? Is there anything that you can do?
Yes – there are duties that personal representatives have to collect in the assets of the estate and to properly account for them. They may be in breach of their duties if they don't do that properly. They can be required to make an oath to court with a full inventory and account to the court. If you are concerned get in touch and we can talk through what steps you can take.
What if the executors or personal representatives haven't allocated the money fairly or correctly?
If their negligence or lack of action has caused loss to an estate they will be open to a potential claim by a beneficiary of the estate. We can help with claims like this, contact us for more information.
Is it possible to remove an executor?
Yes – it is possible to do this. Assuming that the executor doesn't agree to be removed, it will need an application to court and we can help by giving you advice and preparing all the paperwork for this.
What if you don't think an Attorney is acting properly under a Power of Attorney?
The Court of Protection has the power to revoke a Power of Attorney, if it is satisfied that there is evidence that the Attorney cannot be trusted to act in the manner and for the purposes for which the Power of Attorney was conferred on him. Also if the Attorney is acting contrary to the person's interests in another context this might be enough to revoke the Attorneyship. If you are concerned about something that is happening under an Attorney's powers, get in touch for more information about the steps that can be taken. Remember, a Power of Attorney ceases the moment a person dies, so an Attorney or Deputy should hand matters over to the personal representative and not continue acting beyond death.
What does intestacy mean?
This is where a person did not make a Will, or where their Will is invalid or fails for some reason. There are specific rules for who will inherit where there was no Will. These may not reflect what the deceased person wanted, or what their clear wishes were.
'I was very pleased with everything. Very friendly staff, Philip Lumb was always there when needed and always kept me up to date with every step of the way with my Inheritance Act Claim.' Client Satisfaction Question, December 2016.
Whatever the situation or your concerns, Clapham & Collinge can help. Contact us today to discuss your individual circumstances in further detail, our specialist solicitors will talk you through your options and advise on the next steps