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Contentious Probate

Contentious Probate

What if I think the will does not reflect what the deceased wanted?

If you have concerns that a deceased relative’s estate may not be all that it should be there are steps you can take. 

The first thing that springs to mind when you hear that the will of a deceased relative does not say what you had thought it would or should, is whether or not the will is valid. There are various reasons why it may not be. It may not have been prepared properly and may not comply with the requirements set out by law. It may be that at the date the instructions were given for this will, the relative concerned was suffering from ill health. He or she may not have had the required mental capacity to make the will concerned. It could also be the case that the deceased was forced to sign the will against his or her better judgment. If this is the case the will can be held to be invalid. If you feel this is likely there are steps you can take to challenge the will. The most important step is to prevent the executor named under this will from taking steps to administer the deceased’s estate which you can do by registering a caveat with the Probate registry. The relevant guidance on caveats can be found on the Probate Registry Website.

Probate Litigation

Once done you should take urgent advice and investigations can be made into the circumstances in which the will was made, including obtaining the will file from the solicitors who took the instructions and perhaps obtaining medical records to assist with the issue of capacity. If sufficient evidence is found then an application can be made seeking that the will is held to be invalid, in which case any earlier will would be used to distribute the deceased’s estate. If there is no earlier will then the estate will be administered under the statutory rules that apply when there is no will. 

What if there is no provision under the Will for me?

It may be that you do not have concerns about the validity of a will but that you are concerned you have not been provided for and feel that you should have been, or indeed that you cannot cope unless the estate makes provision for you.

If you fall into one of several categories of person then you can automatically make a claim against the deceased’s estate, asking the court to distribute the estate in a manner that is different to that set out by the deceased in his or her will. This is very different to challenging the will. You are simply saying that the deceased did not make provision for you when he should have done. It may not be the fault of the deceased. He or she may not have known of your existence or it may be that he or she simply did not make a will and that had he done so provision would have been forthcoming. Examples would include a child who is still in education and for whom the deceased should have been continuing to make provision, or a spouse to whom the deceased was married at the date of death. Perhaps the best example of this is the situation between two people living together as man and wife (a co-habiting couple). If as a couple you have been together for several years and you do not make wills when the first of you dies the other does not automatically receive anything form the deceased’s estate. This can be extremely unfair and this is why cohabitees are one category of person able to make such a claim. Any claim would be brought against the people who will benefit under the will or statutory rules of distribution. Sometimes this can be difficult as you may face the difficult decision of having to make a claim against close family members. However if there is a genuine need there is sometimes no alternative. In such cases mediation can be considered in an effort to reach agreement without litigation.

What if I think the executor is not dealing with the estate properly?

If you have concerns that the executor is not dealing with the estate properly or is delaying things or maybe even acting inappropriately and you feel this may be causing you a loss there is action you can take.  Being an executor brings with it certain responsibilities one of which is to act in the best interests of all beneficiaries all of the time. To assess whether or not the executor is doing that sometime requires the provision of information which is best obtained by providing interim accounts to show what the position is. There is a need for the executor to be completely transparent in his actions especially where someone has cause for suspicion. He should be in a position to provide accounts at all times. If those accounts show that he has done something that is in appropriate or he is simply not doing anything then there is action you can take through the courts to have him removed and replaced with someone independent or maybe even a professional executor.

How to contest a will

This is a complex area of law where you need expert advice.

If you are considering contesting a will, please contact Amanda Melton, our expert in contentious probate on 01494 790047 or email amanda.melton@ibblaw.co.uk