It is an unfortunate fact of life that a person’s death can often lead to disputes over their estate, and there are a number of challenges which might be made to a will.  From the extreme example of a forged, doctored, or fraudulent will, to one which is improperly signed, to a will which excludes a family member who expected to inherit, there are many reasons why someone might be unhappy with a will.

The manner in which a will is contested will depend on the challenge which is being made.

What are the potential challenges?

Will Validity

One of the most common reasons a will is challenged is because someone suspects it may be invalid.  There are a number of reasons why a will might be invalid, including:

1. It was not properly signed or was not signed at all by the deceased. Section 9 Wills Act 1837 requires that a testator must sign their will, with the intention that their signature would give effect to their will, in the presence of two witnesses.  If any of those requirements have not been fulfilled, the will would be invalid.  A will being invalid as a result of improper execution may be accidental (e.g. the deceased did not realise they needed two witnesses, and only had one or none) or purposeful (e.g. the signature on the will was forged by someone other than the deceased).

2. The deceased lacked the capacity to make a will when their will was signed. The question of capacity can be complex, and often a doctor is required to certify that a person making a will has the legal capacity to do so.  If the deceased did not have capacity, their will could not be valid.

3. The deceased did not understand the effect of their will, either because they did not understand the extent of their estate or the identity of people would benefit from it.  This is known as ‘want of knowledge and approval’ and may cause the court to investigate the deceased’s will and the circumstances surrounding it.  Want of knowledge and approval can, but does not always, arise as a result of capacity issues.

The effect of an invalid will in these circumstances is that the deceased may have died intestate (without a will) or, if they had an earlier will, that will would take effect instead.

Inheritance (Provision for Family and Dependants) Act 1975

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (often referred to as ‘Inheritance Act Claims’ or “1975 Act Claims”), are claims brought against the estate in circumstances where the deceased’s will fails to make sufficient provision for the claimant.  This may mean that they have been excluded entirely, or it may be that they are inheriting much less than they anticipated and require.

This is not to suggest that 1975 Act Claims are carte blanche for anyone to bring a claim simply because they would have liked to receive more money from the deceased’s estate. In most cases, claims are either brought by the deceased’s spouse or civil partner, or by someone who was financially reliant on the deceased prior to their death (a dependant).

A spouse or civil partner is entitled to such provision from the estate as is ‘reasonable in all the circumstances’ whether or not it is required for their maintenance.  Often, this means that they are entitled to be kept in the same lifestyle they enjoyed prior to the deceased’s death.

For anyone else bringing a 1975 Act Claim, they are entitled to provision which is required for their maintenance, taking into account a number of factors including the size of the estate and the needs of other beneficiaries.

How Do I Bring A Claim?

No matter what your claim is, the procedure is always relatively similar:

1. Lodge a caveat – if your case concerns will validity, you should enter a caveat, which stops an application for probate.  This can be done online. A caveat will last for 6 months (unless it is removed or warned off earlier) and allows the parties an opportunity to resolve the dispute before probate is granted.  A caveat may be extended beyond 6 months if required.  A caveat can only be entered if probate has not already been granted, and therefore it is advisable to bring your claim as early as possible.

2. Investigating your claim – in the first instance you need to consider what your claim is.  You may not have seen a copy of the will, which does not become a public document until the grant of probate is issued, however you may be able to obtain a copy from the executors.

3. Send a pre-action protocol letter – in almost any dispute, the first step will be to write to the other parties involved setting out your claim. The parties to the claim will usually be the executors and any beneficiaries of the will. This is known as a ‘pre-action protocol letter’, and is sent in accordance with the Civil Procedure Rules Pre-Action Protocols.  It is also recommended that any person looking to bring a claim against an estate follow the Association of Contentious Trusts and Probate Specialists (ACTAPS’) Code of Conduct for trust and estate disputes. In either event, the pre-action process involves exchanging sufficient information about your dispute (and the other party/ies response) to allow each party to assess their respective positions, as well as exchanging key documentation.

4. Alternative Dispute Resolution (ADR) – it is usually recommended that the parties seek to engage in ADR to resolve the dispute, where possible, prior to the issue of proceedings.

5. Issue – if the issues between the parties cannot be resolved, it may then be appropriate to issue your claim against the deceased’s estate.  Most probate claims are issued in the High Court or in one of the Chancery district registries at Birmingham, Bristol, Caernarfon, Cardiff, Leeds, Liverpool, Manchester, Mold, Newcastle upon Tyne and Preston. In limited circumstances (and only where the estate is valued at less than £30,000) a claim may be brought in the County Court.

How Long Will A Claim Take?

The length of time it takes to resolve a probate dispute depends on the type of dispute and the parties involved.  It may also depend on the court where your claim is issued, as some have longer waiting times for hearings than others.  The biggest factor which determines how long your case will take is whether it can be resolved without recourse to the courts, either pre-action or during the proceedings.

Should your case proceed all the way to a full trial, it often takes around 2 years from pre-action protocol process to trial. Some cases may be heard more quickly, and some may take far longer.

We would always recommend taking specialist advice if you think you may have a claim against an estate.  If you have any queries regarding probate claims, please do not hesitate to contact Toby Walker by email or on 01494 893512 or Kezia Brown by email or on 01494 893504.