Wills and Inheritance (Contentious Probate)

Contentious probate is a dispute involving the administration of a deceased person’s estate.  This can include a number of claims.

Being left out of a will

If you have been excluded from the will of a loved one or not received as much as you were hoping, you might be entitled to bring a claim.  Claims under the Inheritance (Provision for Family and Dependants) Act 1975, commonly known as “Inheritance Act claims” or “1975 Act Claims” are claims for reasonable provision from an estate by certain beneficiaries.  Such claims may occur where insufficient provision (or no provision) has been made for a spouse, child, or dependent of the deceased either under the terms of a will or under the intestacy rules.

For spouses, 1975 Act Claims can achieve provision from the estate which is reasonable in all the circumstances, including consideration of the lifestyle enjoyed by the applicant prior to the deceased’s death.  For all other applicants, 1975 Act Claims can achieve provision which is reasonably required for their maintenance.

The deadline to bring a claim under the 1975 Act is only 6 months from the grant of probate, so if you have been excluded from the will of a loved one, or insufficient provision has been made for you, it is important to seek advice as soon as possible.

Disagreements between beneficiaries 

Disputes between beneficiaries of the estate (i.e. those who are inheriting the estate) occur unfortunately often.  Sometimes these arguments may be over the validity of the will, the meaning of the will, or the manner in which the beneficiaries believe that the estate should be distributed. 

We are equipped to advise on all claims. Claims between beneficiaries can be complex, particularly given family dynamics which might influence the parties.  At Allan Janes, our specialist contentious probate solicitors can help to resolve issues as quickly, efficiently, and sympathetically as possible.

Disputes between beneficiaries and executors or between executors

It may be that a dispute arises between the beneficiaries and the executors or personal representatives of the estate.  Such disputes often involve:

  • Inefficient or uncommunicative executors;
  • Executors failing to follow the deceased’s wishes or administer the estate in accordance with the will or intestacy rules;
  • Executors abusing the estate, for example, by paying themselves when they are not entitled to or charging expenses to the estate which they are not entitled to;
  • Executors bringing unnecessary claims in the name of the estate or failing to defend the estate in litigation.

In these circumstances, the beneficiaries might consider an application to remove the executors under s50 of the Administration of Justice Act 1985.  A so-called “s50 Application” gives the court the power to remove or replace executors or personal representatives where there is good reason to do so.

If an executor has been behaving badly and causing loss to the estate, the beneficiaries might consider a claim for breach of trust against the executor to recover financial loss.

In other cases, it may the executors themselves considering an application against a fellow executor who is obstructing the administration of the estate either through inefficiency or breach of duty.

Claims to recover money owed to an estate

It is the role of the executor to protect the assets in the estate.  Sometimes, however, assets are ‘lost’ either through unfortunate circumstances or negligence.  Whether the estate has been incorrectly distributed or assets lost as a result of fraud, we can assist. 

Most commonly claims to recover assets in an estate occur when a will is discovered after the estate has been distributed, for example because the deceased had made a new will which was unknown to the family, or because the will was believed to have been destroyed or revoked, only to be discovered later.  In those circumstances, the estate may have distributed to the incorrect beneficiaries.  The disappointed beneficiaries under the new will would require specialist advice to investigate their options including whether the distributed assets could be recovered.

Claims on behalf of the estate

An estate can bring claims to recover assets or debts itself.  For example if the deceased was owed money at the time of their death, the executors would be entitled (and in some cases, required) to issue proceedings to call in the debt so that the asset can be distributed as part of the estate.

Other claims which might be brought by the personal representatives on behalf of the estate include fatal accident or clinical negligence claims where the deceased’s death occurred as a result of an accident or medical mistake.

Steps executors can take to protect themselves in litigation

Executors have a statutory indemnity for costs in the estate which are reasonable incurred.  However they are personally liable for the costs if they are wrongly incurred.  Sometimes this distinction is clear (house clearance costs are okay, first class flights to the Bahamas to help with your grief are almost certainly not). However litigation costs can be a tricky grey area.  Litigation has inherent risk i.e. there is a risk that you could lose your claim and end up paying the other side’s costs.  In those circumstances, there could be an allegation that it was unreasonable to embark on the litigation in the first place, and that the executors should be liable for the costs personally rather than the estate.

We can help both by advising executors on the merits of claims and risks to the estate, and by applications which can protect the executors.  The court can provide executors with a ‘blessing’ or Re Beddoe order.  This order confirms the court’s view that the litigation is worthwhile and protects the executors from personal liability in the event that there is a costs order against the estate.  Such applications are particularly useful when either the beneficiaries cannot agree whether the claim should be pursued or are unable to agree e.g. because they are minors or otherwise lack mental capacity.

Disagreements over whether a will is valid

In England and Wales the general rule is that you are free to decide how you would like your estate to be distributed after your death, and you can direct that distribution by making a will.  However, when making a will (and after) there are some formalities which need to be considered to ensure that the will is valid.  An invalid will is treated as though it does not exist, meaning that your estate would instead pass either under the terms of an earlier will or the intestacy rules, which may not reflect your wishes or be the most tax efficient way of handling your estate.

It is therefore important to know the reasons for which a will might be invalid.

Improperly signed wills

A will may be invalid if 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).

You should also watch out for who is signing your will.  Your witness must have legal capacity, so for example asking someone who is under 18 (and deemed therefore not to have capacity to understand what they are signing), would invalidate your will.  This is because if you do not have two independent witnesses witness your signature on your will, it will be deemed to not have been “duly executed”.  

Many people would ask a beneficiary or the spouse or civil partner of a beneficiary to witness their will as these are likely to be people you see regularly.  Whilst this would not render the whole will invalid, it would mean that the beneficiary in question forfeits the gift made to them under the estate.  If that person would have significantly benefited from your estate, or was the sole beneficiary, this could have a major impact. 

Capacity concerns

Capacity to make a will requires the testator to:

  • Understand the nature of the will they are making and its effects, including the impact on the intended beneficiaries;
  • Understand the nature and extent of the property they are giving away;
  • Be able to understand potential claims against the estate; and
  • Not have a disorder of the mind which affects their sense of right and wrong, or their ability to exercise their mental faculties.

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.

Want of knowledge and approval

Claims that a will is invalid as a result of want of knowledge and approval occur when 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 who 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.  It may also result where, for example, the testator signed a document without realising it was a will, or if the testator was illiterate, did not read the language their will is written in, or partially sighted or blind, and the will was not read aloud to them.

Undue influence

Undue influence is an equitable claim, which is a category of constructive fraud.  Undue influence occurs where the testator was forced or unfairly persuaded to change their will.  These cases are often difficult to prove and usually arise where there is a set of suspicious circumstances often including:

  • A person who is or may be vulnerable to persuasion either because they lack capacity, fear being abandoned, or are dependent on the person who becomes the primary beneficiary of their estate;
  • Sudden and unexplained changes to a will, including removing or adding beneficiaries without obvious reason; and
  • Often where the testator does not use a solicitor or changes the solicitor they use to write their will despite having a longstanding relationship with a different firm/solicitor.
  • Undue influence must amount to more than mere suggestion or persuasion and may include cases where the benefiter:
  • Repeatedly badgered the testator to make a gift to them (for example, insisting they needed to money to pay off debts);
  • Spread malicious lies or rumours about other beneficiaries to persuade the testator to disinherit them;
  • Pamper or befriend an elderly friend or family member with the intention of being included in their will; or
  • In extreme cases, blackmail or threats including violence or humiliation (e.g. threatening to ruin the testator’s reputation).

Other cases

There are other, less nefarious, reasons why a will may be invalid including where there was a valid will which later becomes invalid.  Such cases include a marriage after a will (where the will was not made in contemplation of marriage), accidental revocation by making a will in another country which revokes your English and Welsh will, or accidental destruction of your original will may be deemed as a revocation meaning the will could no longer be relied upon.

It is always unfortunate when probate becomes contentious and our lawyers recognise that this is a difficult time for those involved.  Our Dispute Resolution team have expertise in a wide range of contentious probate cases, and aim to resolve disputes quickly and cost effectively. Toby Walker, Partner and Head of Dispute Resolution, is a member of ACTAPS – The Association of Contentious Trust and Probate Specialists. Toby has developed a specialism in the area of constructive trusts and estoppel cases.  Charlotte Braham (Senior Associate) and Kezia Brown (Associate Solicitor) are each members of the Contentious Trusts Associate (ConTra).  In 2022, Charlotte gained a distinction in an Advanced Certificate in Contentious Trusts from the Society for Trust and Estate Practitioners (STEP). 

Contentious probate claims can often have short limitation dates (i.e. you only have a short time to notify the court of your claim) and therefore if you think you may have an issue relating to an estate, it is important that you seek expert advice as soon as possible.