Will Disputes and Contentious Probate
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).
Contentious probate is any dispute relating to the administration of a deceased person's estate involving Wills, Trusts, Probate or Powers of Attorney including arguments between executors, trustees or attorneys. This may also involve disputing the amount you have been left, or not left in a Will. The Clapham & Collinge team provide 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 also advise and support with cases involving elderly care and financial abuse of the elderly. The team are committed to working quickly and efficiently to reach a settlement to enable you to move on.
Clapham & Collinge have restructured the way in which it delivers Contentious Probate and Family Disputes including Inheritance (Provision for Family and Dependants) Act 1975 claims. These services have now been brought into the wider Family Department supervised by Neale Grearson and provided by Emerald Priscott, supported by Philip Lumb and Michael Olmer. The team work in collaboration with the private client department with the change in internal structure aimed to dovetail with likely future changes to Civil Procedure bringing these types of disputes into greater parallel with Family Procedure and the Family Court.
Contesting a Will - 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.
- Q. How do I find a copy of the Will?
- Q. 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?
- Q. What if the executors or personal representatives haven't allocated the money fairly or correctly?
- Q. Is it possible to remove an executor?
- Q. What if you don't think an Attorney is acting properly under a Power of Attorney?
- Q. What does intestacy mean?
'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.
'I would just like to take an opportunity to thank your firm for such a good job in representing me in regards to my mother's estate. I'm a police officer in Canada and I have recommended your law firm to my friends still residing in the UK. The service provided was results orientated and the speed with which those results occurred saved me money. Thank you again.' Client thank you, July 2017.
"I would like to thank you Emerald, for all your help and guidance during this time. If we are to require legal advice in the future, we will be in touch with you. You have provided us an excellent service which M and I both very much appreciate." Client thank you email, July 2019.
If you have a legal query call Will Disputes and Contentious Probate solicitors who will talk you through your options and advise on the next steps.