Challenging A Will – Disputing Probate

Our solicitors can help you to take legal action with the intention of challenging a will, contesting disputed probate or objecting to the appointment or behaviour of trustees. We make no bones about it; virtually all types of litigation are inherently risky and if possible we always try to assist clients in avoiding the need to litigate by negotiation. However, we do understand that in some circumstances litigation cannot be avoided and in our view, the job of a good contentious lawyer is to give clear advice at all stages, assess the risk with you and agree on a clear strategy and focus on your objectives. We are experienced in dealing with statutory bodies, with courts and with tribunals and will always look to deal with your case as sympathetically as we can. If you would like free legal advice without further obligation about challenging a will or objecting to disputed probate or taking legal action against trustees just complete the contact form or use the helpline or email our offices. There are time limits relevant to challenging a will and any claims must be made within 6 months of the issue of the Grant of Probate.

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Valid Will Criteria

There are a number of ways of challenging a will which may be held to be invalid by a court of law if it does not satisfy the basic statutory requirements as follows :-

• Over 18

  The person who has made the will must have been over the age of 18 years at the time the will was signed and witnessed. It does not matter that the person died after the 18th birthday nor does it matter that instructions to prepare the will were given prior to the 18th birthday.

  • Undue Influence

    The person making the will must not have been subject to ‘undue influence’ which can include ‘duress’. Undue influence is pressure falling short of duress which usually involves the threat of personal injury or blackmail. Both are grounds to contest the validity of a will. Undue influence usually occurs where there is a relationship between the parties which is exploited by the potential beneficiary. Undue influence is not always overt but may take the form of bullying, emotional blackmail, threats to withhold assistance or misrepresentation of facts. Successfully challenging a will on these grounds requires very substantial evidence.

  • Sound Mind

    The person making the will must be of sound mind and capable of understanding fully what the document means. This is frequently an issue for the elderly with the onset of dementia or Alzheimer’s although those with longstanding mental difficulties can still make a valid will during periods of lucidity when full mental capacity returns albeit temporarily. A cautious lawyer will obtain a medical certificate attesting to mental competency if there is likely to be a dispute in due course, particularly for elderly individuals or where the estate is substantial or where the will is of an unusual nature.

  • Witness Signature

    To be valid, the testator and two witnesses should be present, in the same room, in full sight of one another and at the same time as the will is signed by both witnesses together. It doesn't matter that the testator actually signed the document earlier provided that the signature is acknowledged and verified by the testator who must be present as the will is witnessed. Even the slightest deviation from this procedure will give grounds for challenging a will.

  • Witness Beneficiary

    A witness who is also named as a beneficiary in the document will lose their inheritance. The rest of the will remains valid and the residual clauses or the intestacy may take care of the witnesses gift, however if not the state may step to claim it.

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  Revoked by Destruction

  Destroyed wills cause no end of difficulties and challenging a destroyed will can be a complex legal issue. Most wills are revoked by the execution of a subsequent will that contains a revocation clause however a will can also be revoked by the deliberate destruction by the testator or somebody else upon the testators instructions provided that the intention of the testator was to revoke the will by destruction. The effect of this is that the testator becomes intestate and the intestacy rules apply upon death or a previous will is revived and takes precedence. If however the will is destroyed accidentally then it is not revoked.

  It is sadly often the case that the first person to gain access to the testator’s property finds an original will in which they are not mentioned and destroys it in the hope that they may then benefit either from an earlier will or by virtue of the operation of the intestacy rules, if there is no earlier will. Challenging a will in any of these circumstances requires strong evidence to refute allegations of deliberate destruction by the testator with the intention of revocation of the will.

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  Lost Will

  If a known will cannot be found there is often a presumption that the testator has destroyed it, with the intention of revocation however matters are often further complicated if the testator destroys just a copy whilst the original is in the safe keeping of a third pasty – in this case destruction of copy, with or without intention to revoke, does not invalidate the original will. If an original will has been genuinely lost as opposed to revoked by destruction then it is possible to obtain a grant of probate on the basis of a copy of the original will. The court tends to presume that a lost will has been revoked by destruction and will require strong evidence to show that the original document has merely been lost. An application to prove a copy may also attract the attention of other potential beneficiarys who are intent on challenging the will as they may benefit under an earlier will or by virtue of the intestacy rules.

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  Intestacy Rules

  The intestacy rules apply if there is no valid will. If an earlier will is revoked by destruction and there was no earlier backup will then the intestacy rules apply. It is often the case that close relatives are interested in challenging a will if they are not mentioned as a beneficiary in the hope that the intestacy rules will be applied, ensuring that they receive a legacy. The intestacy rules contain a strict order of precedence as to which relatives will benefit if an individual dies without making a will. If there are no eligible relatives, the State will step in and claim the entire estate, which is forfeit to the Chancellor of the Exchequer.

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  Caveats

  An executor only receives legal authority to deal with the estate of the deceased from the issue of a grant of probate. In order to be warned of any intention by a third party to make application for a grant of probate, use is made of a ‘caveat’ in the form of a written warning by the probate registry if documents are lodged with the intention of applying for probate. A caveat is lodged in the probate registry, the effect of which is to delay issue of a grant of probate until the party in dispute has the opportunity of taking legal advice and if appropriate subsequently objecting to the issue of the grant if probate.

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  Injunctions

  Once the grant of probate has been issued, giving the executors full authority to deal with the estate of the deceased, whilst application can be made to the court for revocation of the grant of probate or dismissal and replacement of the executors, use is more often made of the issue of an ‘injunction’ the effect of which is to either stop the executors from doing something or instructing the executors to actually do something.

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  No Win No Fee

  Our solicitors are dedicated to obtaining full and fair compensation for their clients and provide legal representation for challenging a will on a no win no fee basis, which means that, win or lose, you pay nothing. You will not be asked to fund or finance the claim and we guarantee that any compensation awarded will be paid to you in full with absolutely no deductions. Contact us today for free legal advice, either by completing the online form or by emailing our offices or by calling our helpline. Each claim will be assessed individually in order to determine the likely outcome and the possible value of the claim. This initial consultation is provided free of charge and without any further obligation. Should you choose to move forward with your claim, you will not be required to pay fees or expenses of any kind - each case is handled on a no win no fee basis.

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  Free Legal Advice

  We recognise that challenging a will can be an emotive business and that our clients expect more from us than our professional expertise and experience and that we operate as service providers in a highly competitive market. We strive for excellence in providing sound advice coupled with a rapid, proactive and friendly service utilising all available technological aids. Whether you need advice on contentious work involving the courts or non contentious work our solicitors are able to offer you sound no nonsense advice.

  
  
  Risk free – Compensation paid in full – Win or lose no charge.
  
  
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