Contest a Will
Are you looking to contest a Will or perhaps you are experiencing a probate or inheritance dispute? Our specialist lawyers can advise you on all types of disputes relating to Wills, Trusts and Estates.
Whether you are an Individual Beneficiary, a Trustee, an Executor or an Administrator, whether you are a Claimant or Defendant, we have experience in acting for you.
If you are looking to contest a Will, we are able to advise you on a wide range of claims, including:
- Disputing the validity of a Will
- A lack of testamentary capacity if you have been left out of a Will
- If the Executor or Trustee has not acted properly or is accused of not acting properly
Do I need a Solicitor to contest a Will?
A poorly drafted Will can create uncertainty concerning the intentions of the deceased as to how their assets were to be distributed. This can lead to arguments as to whether the Will is valid and a potential challenge from relatives or friends of the deceased who believed they should have been included. In addition, with people now living longer and the increase of dementia and other diseases, there are now more incidents of Wills being challenged on grounds of lack of the appropriate mental capacity.
In most cases where a dispute over a Will occurs (typically between family members) it is best to seek to resolve any disputes amicably. Where this is not possible, court action might be the only alternative.
Removing an Executor from post – can you – should you?
Being an Executor is an important role both for ensuring that the wishes of the person who died are carried out but also for ensuring that all the administration associated with dealing with someone’s estate is correctly managed. It is a job that is often given to close family and friends who may also be significant beneficiaries as well. It is precisely because of these things that problems can occur. Sometimes those problems need legal intervention.
How much does it cost to contest a Will?
In most cases where someone is trying to contest a Will, it is best to seek to resolve any disputes amicably. Where this is not possible then court action might be the only alternative, but it comes at a cost both personally and financially.
When you need urgent action we are quick and decisive. Where more strategic input is required, we will offer you pragmatic thoughtful solutions to avoid a dispute or mitigate risk with advice that is clear, concise and cost effective.
Contest a Will FAQ’s
What is an Executor (Executrix)?
This is person appointed in a Will to deal with the Administration and distribution of someone’s estate. In legal terms an executor owns the property of a deceased person for the purposes of giving effect to the terms of the Will.
What is a Default Beneficiary?
This is a “longstop” beneficiary, that is someone who is entitled to benefit when everyone else who is entitled to benefit has died. In general, a default beneficiary should never inherit if a trust is properly managed. However, there are often important legal reasons to name someone as a default beneficiary. Curiously the default beneficiary is often one of the main beneficiaries, but he or she is named in a specific way that means that even if he or she has died his or her estate will benefit. In practice this would probably be a nightmare, but it virtually never happens. Alternatively, people often name a charity as the Default Beneficiary.
What is an Administrator?
This is a person who is responsible for dealing with the estate of a deceased person where there is no Will, or the Will does not appoint an Executor. In the main the duties and responsibilities of an Administrator and an Executor are the same but there are a few, occasionally important, differences between and Executor and Administrator. Very often Administrators are referred to as Executors.
What happens if one of the executors of a Will doesn’t have mental capacity?
The other named Executors of the Will would be able to act instead. If there is only one Executor appointed then an application can be made for a Grant of Representation to act for the use and benefit of the person who lacks capacity. This is a complex application and may require the permission of the Court of Protection.
What happens if there is an error in the Will?
It depends on the type of error made. The courts only really have the power to rectify an error that is clerical in nature (misspelling of names for example, clear cases of missed words). Errors relating to the thoughts and intentions of the person who made the Will cannot be rectified. For example, if a testator mistakenly leaves out a beneficiary who they intended to benefit in their Will, the Will cannot be altered. If you believe there is an error in a Will and would like to make an application for rectification, please contact us.
Do you always need a Grant of Probate to take control of the deceased’s assets?
If you are acting as an Executor you do not always need a Grant of probate to gain control of the deceased’s assets. Small estates (up to the value of £25,000) can usually be dealt with without a grant. Also, assets owned jointly pass to the surviving co-owner automatically, under a concept known as Survivorship. This means that often a married couple who has mostly jointly held assets will not need a grant unless the deceased held assets in their sole name above the value of £25,000. Some banks can be very flexible and allow Executors to sign a small estates declaration form however every bank and asset holder has different rules and limitations to what can be done without a Grant of Probate.
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Families are complicated affairs and unfortunately the death of a loved one can expose the cracks in inter-family relations.
In England and Wales, a person making a will must be able to fully understand what they are doing at that time.
One culturally significant issue risen in the courts in two recent cases: the issue of disinheriting family members because of their sex.
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Herrington Carmichael offers legal advice to UK and International businesses as well as individuals and families. Rated as a ‘Leading Firm 2024’ by the legal directory Legal 500 and listed in The Times ‘Best Law Firms 2023 & 2024’. Herrington Carmichael has offices in London, Farnborough, Reading, and Ascot.