Contentious probate, in basic terms, is where there is a disagreement after someone has passed away about the distribution of their estate. The dispute could emerge from the potential beneficiary that the Will didn’t leave them what they felt was their right or were promised. People also may have concerns regarding the way in which the Will was made. Alternatively there could be other issues sufficient to prove the Will to be invalid.
There are a number of things that need to be complied with in order for a Will to be valid.
The Will must have been made in writing, voluntarily and without influence. The person who wrote the Will must have been over the age of 18, of sound mind, in the presence of two witnesses. The two witnesses must have signed the Will, in the presence of the person who created the Will and of course the person making the Will must have signed it also.
The main piece of legislation for contentious probate is the Inheritance (Provision for Family and Dependants) Act 1975. If the claim is that the Will did not make sufficient financial provision for someone then the Act sets out who can claim. A claim would be for what they might reasonably expect to receive after a loved one has passed away. If you or someone who know feel they didn’t receive what was expected – they may be entitled to claim.
It is important to be aware that there are rigid time restrictions if people feel that they wish to claim. Any claim must be made within 6 months of the grant of probate or letters of administration (if the deceased did not make a Will). Otherwise leave of the Court will need to be obtained to make an application.
Who can Claim?
To make a claim under this Act, you must be a person who fits into one of the categories of people listed in the Act (section 1(1)).
These categories are:
- A spouse of the person who has passed away.
- A former spouse of the person who has passed away, ONLY if you have not remarried.
- A partner who lived with the deceased for at least 2 years immediately before the death.
- A child of the person who has passed away.
- A person who was treated as a child of the family by the person who passed away.
- Someone who was supported financially (partly or totally) by the person who has died.
If you can apply one of those categories to your particular circumstances that means you are one step closer to being able to make a claim. The next box to tick is whether you have reasonable grounds to make a claim. These grounds are:
- The Will does not accord with the deceased’s wishes.
- There was a mistake of fact, for example by the lawyers.
- The deceased lacked capacity and didn’t fully understand the meaning and defect of what was in the Will, for example they had dementia.
- The Will was made under undue influence.
- The Will was not executed properly
- You feel that you were unfairly treated and not left enough or left out of the Will and you were maintained by the deceased.
If you can apply one of those grounds to your own situation, you may be able to claim under the Act and contest the Probate.
Contested Will Assessment
If you would like to talk to us about your situation then we offer a free 20-minute Contested Will Assessment by phone.
To arrange your consultation or to talk to us about your Will dispute matter then call us 0208 63405850 and ask for Shamim Ibrahim or email on shamim@anshamwhite.co.uk .
Mental Capacity & Undue Influence
If you disagree with a Will because you feel that the person who made and signed the Will did not have proper mental capacity to make it then the probate of a Will can be contested on the grounds that the person making it did not have mental capacity to make. A Will can also be contested if you think the person who signed it did not realise they were making a Will or did not know what the Will said. This sort of claim is called a want of knowledge and approval.
If you think there may be a claim alleging mental incapacity or lack of knowledge please talk to us. There are complicated rules about who has to prove the facts that can affect the likely chance of success. This is something we can explain in our free Contested Will Assessment meeting.
Dealing with Contentious Probate
It is important if you feel that that you’ve been incorrectly left out of a Will, or if there’s someone contesting a Will and you would like to defend your position, is to contact an expert and trusted Solicitor. It is important to get swift advice and act quickly.
At Ansham White Solicitors we know that dealing with these problems while grieving is difficult and can be painful – that’s why our experts are on hand to minimise the stress for you. Dealing with issues around who is entitled to what in a Will requires a sensitive approach, which looks at a wide range of factors – from family disputes to difficulties regarding testamentary capacity and undue influence. Our solicitors are greatly experienced in these matters.
We offer a free 20-minute Contested Will Assessment meeting by phone. We will give you an assessment of how strong your case is and the various options for funding any legal fees if legal action is needed. At the meeting we will also tell you about the steps you should take straight away.
For more information about Wills and Probate please click here.