Contentious probate disputes arise when the validity of a Will is challenged. As people are living longer and dementia is on the rise it is becoming more common for relatives to seek legal advice after a death. At Ridley & Hall, our specialist solicitors can offer expert advice on all contentious probate and inheritance disputes.
How We Can Help
Contentious probate cases are often complex, and this is why it’s important to seek legal advice that you can trust. The solicitors at Ridley & Hall tailor their services to suit your dispute case. We offer sympathetic, practical advice and support that aims to achieve the best outcome for all of our clients.
Our complete contentious probate service covers disputes in relation to:
- Probate & Estate Administration
- Inheritance Tax
- Powers of Attorney
- Court of Protection
- Financial abuse
An initial telephone discussion is free of charge and there are funding options available, including fixed fees, legal expenses insurance and ‘no win no fee’.
We encourage parties to go to mediation rather than to fight out cases in court, when that’s appropriate, as it’s often cheaper and less stressful than going to court. Our team includes Director Sarah Young and Partner James Urquhart-Burton
What Should I Do?
I Am An Executor
Any dispute is really between the person bringing the claim (the claimant) and the beneficiaries of the estate. You must remain neutral. It’s important that you act in the best interests of the estate and make sure the beneficiaries are aware of the claim and get their own legal advice.
You must respond to reasonable requests for information about the estate. If the validity of the will is being challenged you may need to authorise disclosure of any will file prepared by the solicitor who drafted the will.
I Am A Beneficiary
If you are to receive a relatively small fixed sum bequest in the will you may not need to be involved in any litigation, but if you are a residuary beneficiary (ie you receive a share of all of the deceased’s estate) or you’ve been left a substantial legacy, you will need legal advice.
It’s often most cost effective to club together with the other beneficiaries and instruct one solicitor to avoid work being duplicated. It’s likely (but not always the case) that the estate will pay your legal costs but you must behave reasonably. Mediation can often be an effective way to resolve a will dispute.
I Am Both An Executor and a Beneficiary
You must be very careful to know which “hat” you are wearing when you make decisions about the dispute. You ought to have separate legal representation, so if you have instructed solicitors to deal with the administration of the estate it is usually not appropriate for them to also represent you in relation to any dispute if you are a beneficiary as well as an executor.
It can be fatally easy for the lines to become blurred so that the person bringing the claim isn’t clear whether you are acting neutrally (which you must as an executor) or not. As a beneficiary you are perfectly entitled to deal with the claim but you need a litigation solicitor to help you with that and not a wills and probate solicitor. As an executor you need to act in the best interests of the estate, make sure that other beneficiaries are aware of the claim and respond to any reasonable requests for information about the claim. You may need to authorise disclosure of any will file prepared by the solicitor who drafted the will.
As a beneficiary if your interests coincide with other beneficiaries then the most cost effective way forward would be for you all to instruct one solicitor to represent you to avoid costs and work being duplicated.
In terms of legal costs in your capacity as executor, those costs will nearly always be met by the estate. That is not automatically the situation with regard to your role as beneficiary. So it’s really important that you are clear about your role and the likely costs involved in any litigation.
Defending An Estate From A Will Dispute
If you are an executor of an estate, you may have to decide what to do if you are notified of a will challenge.
It may not always be clear on what basis a challenge is being brought. In the early stages the challenger may not have very much information at all and may be asking you to provide them with documents and information.
To what extent should you pay attention to any letter you receive?
The general rule of thumb is that it is better to provide full and frank disclosure at an early stage to fend off potential claims against a deceased’s estate – if information is not provided or a combative approach is adopted, the challenger may think that there is “no smoke without fire”.
An executor has a responsibility to the deceased and to the beneficiaries of the estate to act reasonably and fairly. You must remain neutral in relation to any dispute; taking sides could result in a costs order being made against you.
If a claim is being brought against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 the claimant has a six-month deadline for bringing a claim, from the date of the grant of probate. Failure by an executor to provide information about, for example, the size and nature of the estate and who the beneficiaries are, could lead to expensive proceedings being issued at court unnecessarily.
There is no such deadline in relation to contentious probate proceedings – where the validity of a will is being challenged – but in all cases it is sensible for executors to take specialist legal advice at the earliest possible opportunity.
Making a Will Dispute Claim; What has to be Proved?
When someone dies having made a Will, an executor will usually have been appointed. Their role is to ensure that the wishes of the Will maker (called the Testator) are respected. Normally, but not always, that means that they need to apply for a Grant of Probate. If you believe that a Will is not valid, you should act quickly to prevent a Grant being taken out by entering something called a caveat. You can do this online.
The validity of a Will can be challenged on several grounds:
1. Lack of testamentary intention – a document will only operate as a Will if it was intended to operate as a Will.
2. Lack of due execution – a Will must comply with the requirements of Section 9 of the Wills Act 1837 and is not valid unless:
a. It is in writing and signed by the Testator or by some other person in his presence and by his direction.
b. It appears that the Testator intended by his signature to give effect to the Will.
c. The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time.
d. Each witness either:
i. Attests and signs the Will
ii. Acknowledges his signature in the presence of the Testator (but not necessarily in the presence of any other witness).
3. Lack of testamentary capacity – the person making a Will needs to be capable of understanding:
a. The nature of his act and its effect.
b. The extent of the property of which he is disposing.
c. The claims to which he ought to give effect.
4. Lack of knowledge and approval – did the Testator know and approve the contents of the Will? Were there any suspicious circumstances?
5. Undue influence – this has a narrow definition and coercion must be proved. The test is whether the testator would say “This is not my wish but I must do it”.
6. Fraud and forgery – what must be proved here is dishonesty. As a serious allegation it requires a high standard of proof.
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Frequently Asked Questions
You may receive a Larke v Nugus request – this is a letter requesting information about the circumstances under which instructions were taken for the preparation of a will and its execution. You should seek legal advice about this before responding.
It may be that someone who is challenging a will has entered a caveat to prevent a grant being taken out. It’s important to take action if a caveat has been lodged to file a Warning if you consider that the caveat isn’t justified.
If the caveator then files a document called an Appearance then the caveat remains in force for 6 months and at the end of that period can be renewed. It may then become permanent until court action of some sort is taken.
It’s very important when you are defending an estate from a claim that you have a clear understanding of the strengths and weaknesses of the claimant’s case. You must also remain neutral. That can be very difficult if the executor personally feels very strongly about the claim. If you are a beneficiary as well as an executor, then it’s very important that you understand the nature of your responsibilities in both capacities and that that is made clear in any correspondence.
If the claim that is being pursued has merit, then it’s wise to negotiate an out of court settlement as soon as possible.
You don’t have to have a solicitor who is local to you. You should instruct a specialist rather than someone who does general litigation work. We act for clients throughout England and Wales and internationally. We use a variety of forms of communication including email, Zoom, Skype, Whatsapp video calls and the telephone. We’re flexible and down to earth; we want to keep in touch with you in whatever way is best for you. Our aim is to ensure the case stays on track and you are kept up to date. So, there’s no reason not to ask us to help you!
If you are an executor of the estate, then you must remain neutral in any dispute but you may still need a solicitor to represent you. Your costs may be met by the estate at the end of the case so long as you have behaved reasonably. Whatever role you play in any litigation, you must not assume that your legal costs will be paid by the estate, so it’s really important that you get advice about the merits of the claim as soon as possible. The general rule in litigation is that the loser pays the winner’s costs. A ‘no win no fee’ agreement is sometimes a possibility for someone bringing a claim against an estate – we can discuss this with you..
Even if the estate is fairly small legal costs can quickly escalate and if proceedings are issued at court the costs of each party could be in the region of £50,000 each. We can talk you through all the options and explain what’s best for you.
If you have taken out a grant of probate and more than 6 months have passed then it’s unlikely (though not impossible) that a claim can be brought against the estate by a disappointed beneficiary under the Inheritance (Provision for Family and Dependants) Act 1975. It will certainly be a lot more difficult for someone to bring a challenge under that Act after the deadline has passed as they need the court’s permission. There are no deadlines in relation to contentious probate proceedings (where the validity of a will is being challenged) so claims can be brought at any time – but in practice if the estate has been distributed it’s very unlikely that a challenge can be successfully brought. So it’s sensible to administer the estate as quickly as you can – but usually not before 6 months from the grant has expired.
- When someone dies leaving a Will that excludes a person expecting to benefit from it.
- When someone dies without leaving a Will resulting in members of the family not benefiting from the estate.
- When a Will results in the distribution of the estate contrary to the apparent wishes of the deceased. A claim may be possible against the professional adviser who prepared the Will (professional negligence).
- When there is evidence that the Deceased’s Will was made under duress or they lacked the mental capacity to make it.
- Where no provision has been made for someone despite a promise by the deceased that they will benefit