Why might you need a Wills and Probate lawyer?
Probate refers to the process you go through if you are handling the estate of someone who has died. It gives you the legal right to distribute the estate according to the deceased’s wishes. There are two situations which may apply when you apply for what is known as a Grant of Probate. That is, the deceased has died and left a Will (where he is known to have died Testate) or he has died and has not left a Will (where he is known to have died Intestate).
What happens when the deceased has left a Will?
If the deceased left a Will, it usually names one or more 'executors' who can apply for the grant of Probate. If the named executor does not wish to act, someone else named in the Will can apply (depending on a strict order of priority). This person is called 'the administrator' and they will need to apply for a grant of 'letters of administration with will'.
What happens when someone dies without leaving a Will?
If the deceased died without leaving a Will, a blood relative can apply for a grant of 'letters of administration' and becomes ‘the administrator’. This is based on a strict next-of-kin order of priority defined in the 'rules of intestacy'.
How to challenge a Will
There are a number of grounds on which it may be possible to challenge or contest the validity of a Will.
- The testator (the person making the Will) did not have sufficient mental capacity at the time the Will was made
- Undue influence was placed on the testator at the time the Will was made;
- The testator did not approve or have knowledge of the contents of the Will
- The necessary formalities of the Wills Act 1837 were not observed when the Will was made (e.g. the Will was not properly witnessed)
Medical evidence (e.g. on whether the testator had sufficient mental capacity) is often especially important but other types of expert evidence such as handwriting (e.g. where it is disputed whether the testator actually signed the will him or herself) may be required. People who knew the testator may also need to give evidence about the testator’s apparent state of mind, and the relationship between the testator and those who have benefited under the Will.
Claims can also be made under the Inheritance Act 1975. Whether the deceased has made a Will or dies intestate, the Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of person to make a claim for ‘reasonable financial provision’ out of the estate.
Who can challenge a Will?
- Former spouses who have not remarried
- Children of the deceased
- Any person treated as a child of the deceased
- Any other person who was maintained by the deceased
- The financial needs and resources of the person or persons making the claim
- The financial needs and resources of the beneficiaries of the estate
- Obligations and responsibilities the deceased had towards any person making a claim or any beneficiaries of the estate
- The size and nature of the estate
- Any physical or mental disability of any person making a claim
- Any beneficiary of the estate
- Any other matter the court considers relevant, including the conduct of the person making the claim or any other relevant person
In the case of a spouse or a former spouse who makes a claim, the court will also consider:
A claim under the Inheritance Act 1975 follows a similar process to other litigation and any claim must usually be started within 6 months of the grant of Probate or letters of administration. Permission is required for any claim made outside this time limit.
Disputing how the estate is managed
Even where there is no dispute over who is entitled to benefit from an estate, there may be disagreement about how the estate is managed. Often, the beneficiaries of an estate will become frustrated with an executor’s slow progress in dealing with the estate, a failure to keep the beneficiaries updated with the progress, or because the executor and the beneficiaries do not get along.
In these circumstances, there is sometimes little formal action that can be taken other than a letter of complaint. However, in more serious cases, it may be appropriate to apply to the court to remove an executor and substitute a new one.
What should I do if I wish to contest a Will?
Usually, the provisions of the Will are not known until the testator dies. At that stage, the executors will begin taking steps towards obtaining Probate of the Will. Anyone wishing to dispute its validity will want to prevent the executor proving the Will and commencing the administration of the estate. It is possible to ‘block’ Probate of a Will by registering a caveat.
Contentious Probate matters are potentially quite complex and it is advised that those seeking to challenge the validity of a Will or intending to make claims for financial provision should seek and obtain legal advice.