Contesting a Will

Family Members / Surviving Spouses / Dependants who were named in a previous Will or who would inherit if there were no Will might contest if they feel unfairly excluded, do not think they have received their “fair share” or believe the current Will doesn’t reflect the deceased’s intentions.

Executor or Trustee
In some cases, an executor or trustee might need to ask the Court for guidance or Orders if they believe the terms of the Will poses legal or practical challenges to its administration; or cannot do what the Will says they should do, because beneficiaries who are to jointly receive an asset are at loggerheads. For example (i) whether a house to be left to them should be sold or rented out (ii) whether shares should be sold or divided up between them (iii) what price a house should be sold for, particularly if there is potential development value (iv) one beneficiary was living in the house, perhaps having looked after the deceased until their death, and wants to continue to live there, whilst the house needs to be sold to pay debts or give other beneficiaries their share.

Individuals Questioning Validity
Those challenging the legality or validity of the Will due to concerns about the deceased’s mental capacity when drafting the Will, claims of coercion, fraud, or that the Will was not properly signed or is not the latest Will.

For a Will to be valid, it must be signed by the person who made it (the ‘Testator’), and at least two witnesses who are both present to witness the Testator’s signature. The witnesses also have to sign the Will. If there is any doubt as to whether these steps have been followed or carried out correctly then it can render the Will invalid.

The Testator must have mental capacity to execute the Will for it to be valid. It’s important to note that a challenge on this basis must consider the testator’s mental state at the time of signing the Will, not subsequently. Being of ‘capacity’ is not just an issue of neurological illness (e.g. dementia), but it could be simply a time of poor mental wellbeing. A key consideration is whether the Testator did not understand the language or implications of the Will at the time it was drafted and executed. It’s important to note that capacity is fluid, as in that capacity can change from day to day, even hour to hour. A competent professional will assess each person’s capacity each time they draft a Will for a client and will address any concerns they may have at the time.

Claims against the Estate

Most probate disputes stem from:

• Improper drafting or execution of Wills
• Issues of mental capacity (e.g. dementia)
• Undue influence (i.e. pressure to leave certain things to someone)
• Executors mishandling the estate
• Someone feeling that they have not received their “fair share”
• Executors/Trustees having concerns that they are unsure how to address demands of beneficiaries regarding the Estate Assets
• Disputes between Executors/Trustees that mean the Estate is not being administered at all

If a Will is suddenly altered to include or exclude someone or substantially change the way the estate will be divided, then it could signify that there has been an element of undue influence. Undue influence is exceptionally difficult to prove, but essentially boils down to whether someone has unduly pressured, incentivized or exerted an amount of improper influence which prompted the Testator to change their Will. This is not something that will always be immediately clear and there is a high hurdle to show influence has moved to a case of undue influence.

People who believe they have been unfairly excluded or have not been left their fair share in a Will must take advice quickly after the person has died, and the work to administer the Estate has started. Not everyone can bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975 and even if you are in the class of people who can, that does not necessarily mean the Court will give you a share of the Estate. There are time limits to start Court proceedings under the Act and if the time limit is missed you could lose the right to start a Claim at all.

A poorly drafted Will can create uncertainty concerning the intentions of the deceased as to how their assets were to be distributed, who the actual beneficiaries were intended to be; e.g. who is supposed to be included in a class of beneficiaries; and how the gift should be treated, e.g. a life interest only or an outright gift . This can lead to arguments as to whether the Will is valid and potential challenges.

Homemade Wills are notorious for being unclear when read many years later after the maker of the Will has died.

If a Will is deemed invalid for some reason by the Court, it has no legal effect and the family has to go back to the previous valid Will or if there is none, the Estate will be dealt with under the Intestacy Rules as if no Will exists.

Even with a valid Will, it may be that a beneficiary under the Will feels that the estate has been mishandled by an Executor.

Executors owe a duty to the beneficiaries to manage the estate with care.

Disputes can arise if, for example, a beneficiary feels as though the Executors are not keeping proper accounts or using money or assets from the estate otherwise than dictated in the Will.

Executors / Trustees have responsibilities when dealing with Estates and as many Executors are also beneficiaries, it is important they do not act in their own best interest rather than carrying out their proper duties. Legal advice should be taken if the Executors are struggling to deal with competing beneficiary demands; or if their inability to work effectively together means the Estate is not being administered at all.

Similarly, a beneficiary should also seek legal advice if they have concerns over the handling of the estate by the Executor.

All legal disputes can be expensive, not just in terms of legal costs but also in the time you will need to invest in the case, the stress that will generate and the effect on family relationships.

In most cases where there is a dispute relating to a Will; who is to receive what and whether or not the Estate is being administered properly it is best to consider at an early stage if it can be resolved amicably through negotiation or through some form of formal Alternative Dispute Resolution, such as Mediation. We can guide you through that and will provide you with costs estimates as the matter progresses.

If Court action is started, you need to bear in mind that if it is not settled at some point during the Court process, and before a Final Hearing; the Judge will make a binding decision having heard all the witnesses give evidence and the lawyers argue the case. That decision will be binding even if none of the disputing parties like it.

If you are on the losing side, there is the inevitable risk that you will be required to pay some of the winning party’s legal costs. A Winning party will rarely recover all the costs they have spent with their lawyers