Contentious Probate – Janet Lane talks about this specialist area of law

Janet Lane

Contentious probate, the challenging of a Will, is a specialist area. The following information provides a brief guide based on frequently asked questions.

Following a person’s death their Estate will be distributed in accordance with their Will, if they have made one. It is often at this point that it becomes apparent if one or more of the beneficiaries believes that the Will is invalid, or wishes to contest its provisions.

People have different reasons for challenging a Will. Often people challenge a Will because they feel that it was not right or not fair. This on its own is not a sufficient reason to challenge a Will and a legal reason to challenge a Will is always required.

Some people contest a Will because they believe that it does not represent the testator’s true wishes or perhaps because the provisions were out of character for the testator. Sometimes it is because there is a suggestion that the testator lacked capacity at the time the Will was made or pressure was put on the testator to make the Will in a certain way. Others bring a claim because they have not been provided for in a Will when circumstances suggest that the testator should have provided for them.

Whilst the majority of Wills are not contested, it has become increasingly common for people to challenge Wills where they think that they are not valid, or to make claims against a testator’s Estate where they believe provisions should have been made for them.

The common grounds for challenging a Will are:

  • The testator did not have the appropriate mental capacity at the time of making the Will.

    To be valid the testator must understand that he is making a Will and its effects. He must also understand the extent of the property of which he is disposing. He must be able to understand and appreciate the claims to which he ought to give effect (i.e. any moral claims) and not be suffering a disorder of the mind that perverts his sense of right or poisons his affections.

  • Someone coerced the testator into making the Will.

    If undue pressure has been put on a testator to make a Will in particular terms then it may not be valid. For a Will to be invalid the testator’s free will must have been overcome by someone else. There is a fine line between persuasion and pressure, and in the case of an elderly or vulnerable testator, less pressure may be required to overcome his freewill than if the testator was more able.

  • The Will is a forgery.

    This is serious allegation and hard to prove. However, if there is sufficient evidence to show that the Will is a forgery then it will be invalid.

  • The Will was not signed in accordance with the correct legal formalities.

    A Will must be signed by the person who made it in the presence of two or more witnesses. The witnesses should then sign the Will in the presence of the testator. If a Will is not properly executed then it will be invalid.

  • The testator should have made provision for someone not mentioned in the Will or has made insufficient provision for a beneficiary.

    In these circumstances the claimant is not actually saying that the Will is invalid, but rather that the testator did not provide for them when they should have done so. For example, where a spouse is not provided for in a Will or where the deceased had a financial responsibility for a dependant, which was not accounted for in the Will. Children can bring a claim for financial provision from the testator’s Estate, although this can be difficult for adult children to do.

  • The testator made promises to you.

    This is also a claim whereby the validity of the Will is not being challenged, but rather a claim against the testator’s Estate. Such a claim would be brought if the testator made a promise that you would inherit when he died and you relied on this promise to your detriment. For example, you may have worked for the testator without payment or carried out significant work to the testator’s property on the basis of a promise that you would inherit from the testator’s Estate.

It is now more common for vulnerable people to live for a long time with illnesses such as dementia, which may affect their capacity to make a valid will. Increased public awareness has also made litigation more acceptable and you should not be afraid to consider challenging a Will that you believe to be invalid.

If the deceased did not leave a Will their Estate will pass in accordance with the rules of intestacy. A challenge can be made to the operation of the rules of intestacy if you feel that the rules do not make reasonable financial provision for you.

Contentious probate is a specialist area of legal practice which deals with challenge to a Will or making a claim against the Estate of a person who has died. You should therefore choose a solicitor who is able to properly advise you on the legal merits of your case and knows what needs to be done. Furthermore, you should seek legal advice promptly as some claims have a short time limit for bringing proceedings.