Any death is a difficult and emotional situation to deal with but if a dispute arises over the Will or how the estate is being managed by the executors, it can be hugely upsetting for all concerned.
Here, James Pettit, a Solicitor with Palmers, who specialises in contentious probate, explains how you can take steps to minimise a dispute from happening and what to do if a disagreement occurs:
Contested Wills
Many contentious probate issues relate to the contents of perceived omissions in a Will.
If you were financially dependent on the deceased and you have not been properly provided for, you may be able to contest the Will.
Why can a ‘protected person’ contest a Will?
Under English Law, a person has a basic right to freedom of ‘testamentary disposition’.
In other words, providing they are of sound mind and you’ve not been unduly influenced by someone or placed under duress, it is completely up to you to decide how you wish your estate to be shared out and disposed of, upon your death.
BUT – this is subject to the Inheritance (Provision for Family & Dependants) Act 1975.
Under this Act, certain ‘protected persons’ may have grounds to contest a Will and be able to claim reasonable financial provision.
Examples of ‘protected persons’ include:
- A surviving spouse
- A former spouse
- A child
- Any person treated by the deceased as a child of the family
- Those who were maintained by the deceased immediately before their death and
- Since 1 January 1996, those who were living under the same roof as husband and wife for two years immediately prior to the death
Other reasons for contesting a Will
If you suspect the Will has been forged or the person making the Will was placed under duress, these are also reasons to challenge the validity of the Will.
Although an individual has the right to dispose of his or her estate as they choose, if you expected to inherit and, for no obvious reason, appear to have been left out of a Will, you may wish to challenge its contents.
Wills which have been drafted by individuals late in life and contain unexpected provisions, or name a beneficiary who had only recently come into that person’s life, may well attract suspicion.
For example, you may have had, what you believed to be, a close and loving relationship with a relative. However, behind your back, he or she may have been subjected to false accusations about you.
Your relative may have wrongly believed the rumours to be true and changed their Will as a result.
Although the Will-writing solicitor may have taken the instructions in good faith, a Will drafted in such circumstances might lead to a challenge under the Inheritance Act 1975.
The important thing to remember is – if it seems wrong, don’t necessarily take the Will at face value.
Challenges to the administration of the estate
Where there is a valid Will, one or more individuals may have been names as executors. It is their job to ensure that, after any debts from the estate are paid, all remaining assets are distributed in accordance with the instructions of the Will.
If a beneficiary believes that an executor is mismanaging the process, there may be grounds for challenging how the process is being handled.
- Other estate administration issues may include:
- Trust disputes
- Challenges to a Trustee’s actions or decisions / Removal of Trustee(s)
- Broken promises made by the deceased (promissory estoppel)
The important thing to remember is, if you feel there is an issue with either the Will itself or the subsequent administration of the estate, prompt action is vital.
For help and advice on all matters relating to contested Wills and contentious probate, please get in touch with us.