Contentious probate solicitors

Contentious probate is a dispute involving inheritance or the validity of a will, usually over a disagreement after someone has passed away relating to the distribution of their estate.

Contentious probate disputes may arise in a variety of situations where there are:

• Invalid wills and/or negligent drafting
• Issues of undue influence i.e. being put under pressure to leave items to others
• Issues of lack of mental capacity i.e. not being of sound mind
• Circumstances of fraud or forgery
• Executors failing to properly carry out their duties and deal with the estate
• Rectification of mistakes
• Other issues arising between beneficiaries and executors

No, you do not necessarily need to issue court proceedings to contest a will or make a claim against an estate.

The costs involved in taking a contentious probate claim to court can be high but we regularly use alternative dispute resolution as a means of bringing claims to a successful resolution whilst minimising costs and risk. Alternative dispute resolution can be a less stressful and emotional way of settling claims. Of course, however, we can take a dispute to court if that is a necessary and appropriate way of bringing a claim to a conclusion.

It is vitally important to act quickly if you believe there may be grounds for contesting a will.

Time limits can vary depending on the type of claim, however, below provides a general guide:

• Claims for reasonable financial provision made under the Inheritance Act: within six months from the issue of the grant of probate or letters of administration.
• Rectification claims: where there has been a clerical error in drafting: within six months from the grant of probate
• Claims against an estate: these are governed by the rules under s.22 of the Limitation Act, which allows for a period of 12 years from the date of death. Where there is an action to recover trust property, the limit is six years from the date on which the right of action accrued.
• Fraud: no time limit.

In cases where there may be grounds to contest a will, the person challenging the will can enter a caveat to prevent the grant of probate being issued. You can still contest a will after probate has been issued, however, it is generally easier to recover estate assets if they have not yet been disposed of.

You should speak to a legal expert as soon as possible for advice.

You may be able to argue that a will is invalid if you can show that one or more of the following apply:

• The will was not correctly executed in accordance with the Wills Act 1837;
• The deceased lacked testamentary capacity;
• The deceased was unduly influenced or pressurised into making their will
• There are issues over the lack of knowledge and approval – the deceased did not understand the extent of their estate, or the effect of making a Will; or
• There are issues over forgery or fraud concerning the Will.

 You will need sufficient interest in order to bring a claim. If you think a will is invalid, you should speak to a solicitor as soon as possible for advice.

For a will to be validly executed, it must comply with section 9 of The Wills Act 1837. There are four elements to show:

• It must be in writing and signed by the testator;
• The testator must have intended by his signature for the will to be valid;
• The signature must be acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• Each witness either:
  • attests and signs the will; or
  • acknowledges his signature, in the presence of the testator.

When making a will, the testator must be of ‘sound mind’. There is a legal presumption that an individual has capacity unless it is established that they do not have so. The person making the will must:

• Understand the nature of what they are doing and the effects of that;
• Understand the full extent of what is being given away by them – there would not be a need to be able to compile a mental inventory of all assets, but have a general idea of the assets being disposed by the will;
• Be able to comprehend and appreciate the claims which may arise – there is the need to be able to recall those who have claims upon estate to consider whether to benefit them in the will or not; and
• Must not be affected by any disorder of the mind.

If you believe that the deceased lacked capacity when they made their will, you should contact the legal representative who acted for the testator at the time to ask for evidence to show that the testator did have the mental capacity when the will was made.

If you believe a testator was placed under undue influence or coerced when they made their will, you may be able to contest the will. Undue influence is when pressure is placed on the testator by a third party i.e. to make certain gifts etc.

This is an extremely difficult claim to prove, as the deceased is unable to assist the court. There are no legal presumptions, and it is on the person claiming to provide substantial evidence for the claim.

The court must be satisfied that the testator understood and approved the contents of the will.

Where a will has been executed correctly and the testator had the necessary testamentary capacity, then knowledge and approval are usually presumed.

Relevant questions that the court would consider are whether:

• The circumstances of the will are suspicious; and
• Has scrutiny of those circumstances dispelled those suspicions?

Other circumstances

Certain circumstances where it must be proved that the testator had necessary knowledge to understand the content of their will and that they approved the content:

• If they cannot speak, write, or are paralysed;
• They are blind or illiterate; or

The will is alleged to have been signed by another person for the deceased at his discretion.

If it can be proved that the will has been forged or fraud was involved, then it will be set aside by the court and held to be invalid.

Fraud is defined as a criminal act being “an intentional deception made for personal gain or to damage another individual”.

Common forms of fraud

• Forgery, i.e. testator’s signature on the will, dishonestly concealing or destroying a will.
• Fraudulent calumny, i.e. this is the poisoning of the testator’s mind against a third party who would benefit from the will by making a dishonest misrepresentation.

There is a high degree of proof required to prove allegations of fraud or forgery.

You may have a claim for proprietary estoppel. Proprietary estoppel is a legal remedy to enforce a broken promise. The following factors must be established to bring such a claim:

1. Assurance

There was a promise, representation or assurance made by the deceased that a person would acquire a right or interest in specified property.

2. Reliance

When such a promise has been made, it was relied upon with the belief that it was effective.

3. Detriment

There needs to have been some detriment suffered by relying on that promise. It must be shown that there is a link between reliance on the promise and the detriment suffered.

4. Encouragement

Encouragement by the person making the promise.

If the factors are demonstrated and that it would be unconscionable for no remedy to be given all, the court will consider what remedy to provide. This will be ultimately dependant on the facts of each case , but the powers of the court are wide ranging in this area.

Example case: In Habberfield -v- Habberfield, the daughter of Mr Habberfield, made a claim for proprietary estoppel. She had worked in the family farming business and claimed that her father had made various assurances and promises to her during his lifetime relating to ownership of the farm. She brought a claim that she had acted to her detriment by working at the farm throughout her lifetime for little financial remuneration. The court agreed and made a monetary award to her.

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) enables certain categories of people to seek reasonable financial provision from an estate. They will need to be able to demonstrate that they were financially dependent on the deceased and that there was a failure to make adequate financial provision for them.

The Act stipulates that the following categories of application can bring a claim:

1. A surviving spouse
2. A former spouse who has not remarried
3. A person who had cohabited with the deceased for at least two years immediately prior to their death
4. A child of the deceased
5. A child of the family
6. Any other person treated as a dependent provided that:
   • The deceased died domiciled in England or Wales;
   • The application for the order was made within six months of the grant of representation;
   • The applicant does not fall into one of the categories detailed in (i) – (v); and
   • The deceased did not make reasonable financial provision for the applicant.

The Act requires the court to consider whether reasonable financial provision has been made for the applicant and if not, what provision should be made. The following factors are considered:

• The financial resources and financial needs that the applicant has, or is likely to have, in the foreseeable future.
• The financial resources and financial needs that any other applicant has, or is likely to have, in the foreseeable future.
• The financial resources and financial needs that any beneficiary of the estate of the deceased has, or is likely to have, in the foreseeable future.
• Any obligations and responsibilities that the deceased had towards any applicant for an order or towards any beneficiary of the estate of the deceased.
• The size and nature of the net estate.
• Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased.
• Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case, the court may consider relevant.

Any order made by the court will take into account any other applicants, other beneficiaries and the size of the estate, to ensure that the order of financial provision does not cause significant detriment to another party.

It is a common misconception that the costs of all parties to trust or estate litigation come out of the trust fund or the estate. They do not.

The main principles relating to costs are as follows:

• The overriding principle that costs are at the discretion of the court.
• Subject to this, the normal order is that costs follow the event. The losing party is ordered to pay the winning party’s costs.

Exceptions to the rule – where the deceased has in effect caused the litigation e.g. failed to give consideration to all claims against the estate.

Beneficiaries are those who benefit from an inheritance (money or assets) under the will.

Estate is the general term to describe all that the deceased owned, which might include cash in the bank, shares, stock, assets, and property etc.

Executors are those appointed in the will to carry out the instructions in the will and ensure the beneficiaries receive their inheritance.

Grant of probate is the certificate provided by the Probate Registry confirming that the executors named in the will have the authority to deal with the estate of the deceased.

A testator is the person who has made the Will.