Solicitors have been warned that Lockdown Wills could prompt a wave of contentious probate claims, raising questions about the witnessing of documents and over undue influence and capacity. Disputes Solicitor Damian Pitts, considers some of the most common questions asked in regard to contesting a Will.
Q1. What should I do if I want to contest a Will or estate?
It is important that you seek legal advice as soon as possible as depending on the nature of your claim the time limit to bring your claim could be only 6 months from the issue of the Grant of Probate (where there is a Will) or Grant of Letters of
Administration (where there is no Will). A challenge can be raised before a Grant has been issued and the best way of achieving this is by entering a caveat at the Probate Registry. This prevents the Grant from being issued until after the caveat has expired.
Q2. What is a Caveat?
A caveat stops a Grant being issued in an estate until it has expired. The executors or administrators of an estate are therefore unable to obtain a Grant and distribute the estate. A caveat remains in place for 6 months and can be renewed if you want it to continue. It can also be removed prior to the expiry date by contacting the Probate Registry. A caveat can be issued where there is a dispute over who should apply for the Grant or the validity of a Will or whether a Will exists. The purpose of a caveat is to provide you with additional time to investigate and establish the position of your claim. It is important to note that a caveat can be challenged by the executors or administrators.
Q3. On what grounds can a Will be challenged?
The validity of a Will can be challenged on the following grounds:
- Lack of testamentary capacity on the part of the person making the Will;
- Undue influence i.e. pressure placed a person to make or change their Will;
- Lack of valid execution – Failure to meet the formalities of executing a Will e.g. not being in writing, signed or witnessed correctly;
- Lack of knowledge and approval of the Will on the part of the person making the Will;
- Rectification and construction i.e. the Will is unclear or does not carry out the person’s wishes or intentions.
Under The Inheritance Act (Provisions for Family and Dependants) Act 1975 certain classes of individuals can bring a claim against an estate if they believe they have not been provided with a reasonable financial provision. A claim can be made whether or not the deceased made a Will.
Q5. How can I stop someone contesting a Will?
If someone believes they have a valid claim against a Will you cannot prevent them from doing so however there are steps which you can take when making a Will to prevent a claim being made:
- Letter of wishes – if you think anyone may not understand the decisions in your Will you can write a letter to go alongside your Will. The letter is not legally binding but provides your family with the reasoning and an explanation behind the decisions in your Will. This is particularly important where you have made the decision to leave someone out of your Will. Whilst it will not prevent a valid claim being raised they may be less likely to contest the Will if they understand your decision. It is also a good idea to discuss matters with your family at the time of making your Will;
- Validly execute the Will;
- Obtain a testamentary capacity report;
- Include a no-contest clause (forfeiture clause) in your Will – if the person challenges your Will they will forfeit their provision under the Will;
- Keep your Will updated – it is important to review your Will regularly to ensure it reflects any change in circumstances.
Q6. What to do if someone contests a Will?
Firstly it is important that you take legal advice to establish whether the claim is valid. If requested, a copy of the Will should be provided to the person making the claim. They may also ask for additional information regarding how and when the Will was made. Cooperating and negotiating a settlement with the individual can avoid the need for the claim to be taken to court.
Q7. Is there a time limit to contest a Will?
The time limit will depend upon the nature of the claim.
- Reasonable financial provision
Claims for reasonable financial provision under The Inheritance Act (Provisions for Family and Dependants) Act 1975 must be brought within 6 months of the date of issue of the Grant of Probate or Letters of Administration.
Claims for rectification of a Will must be brought within 6 months of the date of issue of the Grant of Probate or Letters of Administration.
Beneficiaries making a claim against the Will have 12 years from the date of death under the Limitation Act 1980. This applies where their interest in the estate has been established. For example they are entitled to receive an interest but have not been paid.
- Validity of the Will
There is no specific time limit to contest the Will but a valid claim should be brought as soon as possible and if possible before the Grant is issued.
There is no time limit if the claim is on the basis of fraud.
Q8. Contesting a Will – how do I know if I have a claim?
We offer an initial fixed fee consultation to discuss the validity of contesting a Will or Inheritance dispute to ensure you have all the information you need to make an informed decision before giving us further instructions.
Our Wills and Probate litigation solicitors can help you in disputing or contesting a Will. The earlier a dispute can be addressed the quicker and easier it is to diffuse. Our advice is to contact us sooner rather than later.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.