INHERITANCE DISPUTES ARE RARELY STRAIGHTFORWARD AND WE ALWAYS ADVISE PEOPLE WHO ARE CONSIDERING CONTESTING PROBATE TO WEIGH THE ADVANTAGES AND DISADVANTAGES CAREFULLY.
The unique and individual nature of a Will makes contentious probate an area which can quickly become very costly due to the amount of work that needs to be undertaken to establish whether grounds exist to successfully dispute someone’s estate.
In order to be able to contest probate successfully you will need to be able to meet one of five very specific legal tests that relate to the mental capacity of the deceased at the time they made the Will, duress or undue influence, fraud, lack of reasonable provision for any dependents and incorrect execution.
Many people mistakenly believe it is possible to dispute probate because they have been treated unfairly, the whole family has been disinherited, a non-blood relative has benefited significantly from the Will or a verbal promise has not been honoured.
None of these are legitimate reasons in law to contest probate, although unfair treatment is a consideration for a court in deciding whether reasonable financial provision has been made to dependents in the estate.
The five specific legal tests in contentious probate are:
THE DECEASED LACKED THE MENTAL CAPACITY TO MAKE THE WILL
The legal term for this is lack of testamentary capacity and, in simple terms, means the person making the Will did not have the mental wherewithal to make sound decisions about the distribution of their estate.
THE WILL WAS MADE UNDER DURESS OR AS A RESULT OF UNDUE INFLUENCE
This requires someone contesting probate to show that the deceased was forced to make provision in their Will under threat of physical harm, or that someone known to and trusted by them deliberately influenced the content of the Will to their advantage or the advantage of others.
THE WILL IS FRAUDULENT
This would normally relate to forged signatures or the addition or removal of paragraphs or entire pages. However, it also relates to instances where the deceased has included provision in their Will as a result of deliberately false information that has been given to them.
THE WILL HAS NOT BEEN EXECUTED PROPERLY
The process of executing a Will requires the document to be signed by two independent witnesses who will not gain from it and who have the mental capacity to understand the responsibilities of their roles as witnesses.
THE WILL DOES NOT MAKE ADEQUATE PROVISION FOR FAMILY AND DEPENDENTS
Even if they are disinherited, close family members and dependents may contest probate if they feel they have been unfairly treated and, as a result, have not been reasonably provided for, as defined by the Inheritance (Provision for Family and Dependents) Act 1975.
In these cases, a court will decide on the basis of each individual case what might be considered reasonable.
If you believe you have grounds to contest a Will, our specialist contentious probate solicitors can review your specific circumstances and advise you on the likelihood of you having met one of the legal tests.
However, there are no absolutes in contentious probate cases and the process to locate and review evidence can be time-consuming and, therefore, costly.
Although there is no limit on disputing probate on the grounds of fraud, in all other cases you will need to lodge your legal claim against the estate within six months of probate being granted.
If you decide to pursue your claim it’s advisable to make your intentions known as soon as possible to avoid the estate being distributed and matters becoming further complicated.
For more information or to speak to one of our contentious probate solicitors in London, please get in touch with us. Our offices are based in Whetstone, North London & High Holborn, Central London (by appointment only).
