Frequently Asked Questions - Contesting a Will
How do I find a copy of the Will?
There is no central governmental register for Wills.
Personal representatives, close relatives or friends are often made aware of where a testator keeps their Will. Most often, the solicitor that drafted the Will also stores the original. Otherwise, testators may well keep an original or copy Will with their personal documents.
If a solicitor, relative or friend is unable to find a Will, anyone administering an estate must take reasonable steps to locate it. This could involve advertising the death by placing a notice in the London Gazette, or contacting other firms of solicitors.
If a Will cannot be found, the deceased is treated as having died without making one, and their estate is administered in accordance with the intestacy rules.
What does intestacy mean?
Intestacy is where a person does not make a Will before they die, or where a Will they made before their death is invalid or fails for some reason, and there is no other valid Will.
There are specific rules (known as the intestacy rules) for who will inherit where there was no Will. These may well not reflect what the deceased person wanted, or what their clear wishes were.
What if a beneficiary does not agree with the way in which an executor or personal representative is administering an estate?
Executors and personal representatives are required to administer an estate in accordance with certain duties – to collect the assets of an estate, properly account for them, and distribute them in accordance with a Will or the intestacy rules.
If they fail in those duties, it is possible for a beneficiary or other interested party to apply to the Court to have them replaced. Otherwise, it is possible to bring a claim against an executor or personal representative for their failure to act in accordance with their duties.
Is it possible for a person to dispute the validity or content of a Will or a Grant of Probate?
It is possible in certain circumstances for a person to dispute the validity or content of a Will or the Grant of Probate, including:
- Lack of capacity
- Undue influence
- Lack of knowledge or approval of the terms of a Will
It may also be possible for disappointed beneficiaries to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, or against a solicitor who prepared a Will negligently or caused delay in its execution.
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 sufficient 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.
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.
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