Probate can sometimes prove contentious and solicitors must be involved to oversee legal procedures. It is also worth noting that inheritance disputes can be extremely costly due to the amount of investigation and work required. Each case is unique based on the amount of work involved.
It is important to consider potential cost implications at the outset of any proceedings. It is crucial to gather information and to review the merits of the case in the early stages, before contesting a will. The usual principle is that costs are at the full discretion of the Court, though the losing party will generally be ordered to pay all parties costs.
Can I Contest A Will Before Probate?
Before probate is issued, it is possible to raise a dispute regarding what a person has written in their will. Very specific grounds must be proved for this to be considered though. These grounds are:
- If the deceased lacked testamentary capacity
- If the deceased was under any undue influence or coercion
- Lacked knowledge and approval.
- Reasons stated in the Wills Act 1837
- The will was subject to forgery and fraud.
Here is a closer look at these issues separately.
Lack of Testamentary Capacity
A person making a will must be of “sound mind, memory and understanding” when making a will. They must:
- Understand the nature of his/her act and its effects
- Understand the extent of the property which he/she is disposing
- Be able to comprehend and appreciate the claims to which he/she ought to give effect
- Must not be affected by any “disorder of the mind”
Undue Influence or Coercion
One of the grounds for contesting a will is that the person who made it was subjected to undue influence, i.e. pressure exerted by another person. This might be verbal coercion, physical violence, verbal bullying, or simply talking to an impaired person in such a way that the person may be inclined to comply in order to keep the peace.
Lack of Knowledge and Approval
If there is insufficient evidence to prove undue influence, the Court must be satisfied the testator understood and approved the contents of his will.
There are certain circumstances whereby it must be proved that the testator did have necessary knowledge, which are:
- If the testator is deaf and/or unable to communicate verbally
- Cannot speak or write or is paralysed
- Blind or illiterate
- The will is alleged to have been signed fraudulently
Wills Act 1837
A will must comply with section 9 of the Wills Act 1837:
- It must be in writing and signed by the Testator
- The Testator must have intended by his signature for the will to be valid
- The signature must be acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
- Each witness either:
- Attests and signs the will, or
- Acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary
Forgery and Fraud
If it can be proved that a will has been forged or the person making the wills signature has been forged, it will be declared invalid.
Will disputes also arise in relation to the following:
- The interpretation of the terms of a will or trust
- Disputes between beneficiaries and executors/trustees
- Applications to remove or substitute executors or trustees
- Errors in the drafting of a will
- Incorrect administration and distribution of estate
Can I Contest A Will After Probate?
It is possible to challenge the way a will has been carried out after an executor has been granted probate. However, there are a range of conditions that must be met before they are able to contest a will (see the list above).
In cases where a will is being challenged following a grant of probate, the beneficiary must prove the will is invalid, based on information that wasn’t available earlier. This is a difficult situation as the court has already determined that the will in question is valid and legally verified, certificated by the grant of probate.
Sometimes it is alleged that executor is not performing their duties correctly. This would lead to beneficiaries missing out the assets due to them, so it’s important that any unusual activity is challenged.
If you believe that you may have grounds to contest a will, before or after probate is issued, you must seek advice as quickly as possible. This is because it is possible to place the executor ‘on notice’ of a potential dispute or claim prior to estate assets being distributed. If the grounds stated are legitimate and genuine, it may be possible to enter a caveat against the estate to prevent a ‘Grant of Probate’ from being extracted whilst the dispute is ongoing.
It is still possible to contest an estate after a Grant of Probate has been obtained, however, it is far more problematic if estate assets have already been distributed to third parties.
What Happens If Probate Is Contested?
If Probate becomes contentious, a solicitor may advise you on how to approach this. There are several ways which may prevent a grant of probate being issued.
For instance, a beneficiary or relative of the deceased may enter a caveat which prevents or delays probate being granted. This might happen because two people feel equally entitled to apply for probate, or if there are questions about the legitimacy of the will.
Upon placing a caveat on the estate, the person who placed it will need to formally state their reasons within eight days. If they don’t, the caveat will be removed.
Legal advice should be sought before entering a caveat to prevent adverse costs if it has been incorrectly or unreasonably entered. Applications to enter caveats are made to the Probate Registry and are valid for a specified period of time after which further action will be needed to maintain the caveat, if appropriate.
If an Executor wishes to make an application for a Grant of Representation where a caveat in in place, a warning will be served on the caveator by the executor, about which advice should be sought.
How to Enter a Caveat
You must be 18 or over to enter a caveat. You can do it yourself, or use a solicitor licensed to provide probate services.
You or your solicitor will need to provide:
- A signed application for a caveat (form PA8)
- The full name, date of death and last address of the person who’s died
- A home address in England or Wales
When is it Best to Raise a Dispute?
At the first sign of contentious issues or a potential dispute, it is advisable to contact a solicitor. In relation to claims made to the Inheritance (Provision for Family and Dependents) Act 1975, they should be made within 6 months from the Grant of Probate being issued.
Different claims are subject to different time scales during which proceedings should be issued. Seek advice if you are unsure about time restrictions which might affect a claim you wish to bring. If you feel you have ground for contesting a will, seek a solicitor as soon as possible.
Who Pays for Probate Disputes?
In most cases, all costs are usually met by the losing party. In some circumstances, such as where it can be proved an investigation was needed, costs can be paid from the Deceased’s Estate however, this is at the discretion of the Court.
It should not be assumed that costs will automatically be paid from the Deceased’s Estate. Consideration should be given to how you will pay your own costs and potentially, the costs of your opponent if you lose.
After the Event Insurance is available for some types of contentious probate claims.