Contested Wills, Trusts & Inheritance Disputes

FAQs

What is probate?

Probate is the process of administering someone’s estate (including money, property and belongings) after they die. If the estate has significant assets, a formal grant of probate must be obtained form the court so the estate can be collected and divided between the beneficiaries identified in the Will.

What happens if the deceased hasn’t left a Will?

If there is no Will, the deceased’s estate will be governed by the laws of intestacy. These are laws which lay out who the beneficiaries of a person are and in what order.

On what grounds can I dispute a Will?

The validity of a Will can be challenged if it was not signed, witnessed or drafted correctly made by someone not of sound mind (lacking capacity) made under pressure (undue influence) made fraudulently. Although not based on a challenge to the validity of the Will itself, the Inheritance Act 1975 can also be relevant in some cases.

How do I challenge a Will?

The first step would be to seek specialist legal advice as soon as possible. It may be suitable to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a grant to administer the estate. This would give more time for the lawyer to investigate the claim and prepare a case to challenge the validity of the Will.

I am disputing a Will, can I stop an estate being administered?

A specialist Will dispute lawyer can help to stop an estate being paid out to the beneficiaries if there is a concern that the Will is invalid. This is achieved by placing a block on the issue of a grant of probate by the probate registry using a caveat.

How do I obtain a copy of a Will?

The first step is to ask the executor for a copy of the Will. If this is not possible, once a grant of probate has been made then a Will becomes a document of public record and a copy can be obtained from the Probate Registry. To get a copy of the Will urgently, a subpoena can be served on the person who has the Will which requires them to bring a Will to the court, for example, if they hold the original Will but are failing to do anything with it following the death.

What is a ‘no contest’ clause in a Will?

Also referred to as a ‘forfeiture’ clause, this means the beneficiary will forfeit their inheritance if they make a challenge against the Will. It is important for a beneficiary to check for this clause in a Will before making a claim because if unsuccessful they will lose their inheritance.

How long does the Will/inheritance dispute process take?

This can vary as each case is different. For example, if the estate is complex or there are a number of beneficiaries who stand to inherit, the process will likely to take longer to resolve. Usually a dispute is concluded within a few months following investigation. However, it can take longer if an agreement cannot be reached and it goes to court, often up to 12-18 months.

I believe that there is a later version of the Will than is currently being administered by the executors. Can I do anything?

If you know of the existence of a later Will, you should tell the executors as soon as possible. If a grant has already been issued it is not too late – the court has power to revoke an existing grant of probate so that a new grant can be issued to the executors named in the later Will.

Am I eligible to make a claim under the Inheritance Act?

Certain family members and dependants can apply to the court to vary how the estate is divided. The court will consider where the deceased lived if they were married/civil partnership/former partner to the deceased if they lived with the decease if they were a child of the deceased or treated as their child if they were financially looked after by the deceased.

How can I make a claim under the Inheritance Act?

Your lawyer will prepare a formal letter before claim and explore settlement negotiations to avoid going to court. If it is not possible to reach an agreement, the claim will go to court, although it is still possible to negotiate a resolution at any stage up until the trial.

When should I make a claim under the Inheritance Act?

It is important to act quickly; time limits may be relevant and there is a risk that assets might have been distributed already if there is a delay. Applications under the Inheritance Act must normally be made within six months of the date of the grant of representation (the official document confirming who is to administer the estate and sometimes referred to as a grant of probate). Individuals facing a claim against them (defendants) should also be alive to the time limits as a successful limitation defence could provide a total defence to an Inheritance Act claim.

What factors are considered in Inheritance Act claims?

Some of the factors considered include physical and mental health, obligations and responsibilities of the deceased person, the size and nature of the estate (the assets left behind by the deceased), and the financial needs and financial resources of applicants and the existing beneficiaries. Each case is different and depends on its own facts.

If I’m successful in my Inheritance Act claim, how will the money be received?

The court has very wide ranging powers, examples of orders that can be made include payment of a lump sum periodic payments transfer of specific assets an outright interest in a property a lifetime interest in a property.

I’m in a Will/inheritance dispute. Do I have to go to court?

Encouragingly the majority of disputes are resolved by settlement without going to trial. In disputes that do go as far as court, the nature of the dispute can in some instances mean that witness evidence is not needed from you.

Can we go to mediation to resolve a Will/inheritance dispute?

Yes, mediation is a form of alternative dispute resolution (ADR) that is particularly suited to inheritance and trust disputes. Mediation is often quicker, less stressful and cheaper than going to court and should always be considered in the first instance.

I’m not married and my partner died without making a Will. What can I do to claim my inheritance?

This unfortunately is a common situation. Intestacy rules (that say who gets what if there is no Will) do no benefit a cohabitee partner, however you could have a strong claim under the Inheritance Provision for Family & Dependants) Act 1975.

My mother/father died without leaving me anything in their Will. Can I claim my inheritance?

Children (whether adult or under 18) and step children can make a claim. There are multiple factors the court must consider in these cases including financial factors and personal circumstances the size and nature of the estate any obligations and responsibilities which the deceased had towards their children whether the children have any relevant disabilities the manner in which the children are being or expect to be educated or trained.

Who pays the legal costs in a Will/inheritance dispute?

It is a common misconception that the legal costs of an inheritance dispute are automatically paid out of the estate. If a case settles through negotiations the parties can agree between themselves who should pay the costs. If the dispute goes to a trial, the court decides who pays the costs and an assessment then determines how much this will be. The usual rule is that the unsuccessful party pays the costs of the successful party as well as their own.

Can insurance cover the legal costs of a Will/inheritance dispute?

This will depend on the type of insurance. Legal Expense insurance provides protection when taking legal action against another party and coves the legal costs. These policies tend not to provide cover if the claim is made against you. Another type of insurance is After the Event insurance (ATE) and is taken out after the dispute has arisen to protect against the risk of having to pay the opponent’s legal costs if unsuccessful.

I am a trust beneficiary, but the trustee won’t share any information on the trust. What can I do?

A trust beneficiary is entitled to certain information, usually this will include a copy of the trust document, any deeds of variation of the trust, deeds of appointment and trust accounts. A trustee ought to consider any request for information carefully, because if the court finds there is no good reason for the trustee to have refused, they are at risk of an order for costs, which could mean a significant financial penalty.

Downloads

Inheritance Act Claims

A quick guide flowchart on Inheritance Act Claims.
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Contentious Wills, Trusts and Inheritance Disputes case studies

Contentious Wills, Trusts and Inheritance Disputes case studies by Michael Henry.
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Inheritance disputes - radio interview

Senior lawyer, Michael Henry talks about Inheritance disputes. He specifically talks about a case involving a Hertfordshire lady which is the first Inheritance Act claim to reach the Supreme Court.
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Will and inheritance disputes - radio interview

Senior lawyer Michael Henry talks about the legal aspects of Will and inheritance disputes. He advised on what you need to do if you are considering making a claim or are having to defend one (Verulam Radio, September 2016).
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Wills and inheritance disputes questionnaire

Please complete this questionnaire before your first meeting with us. The more information you can provide us before the meeting the more we can tailor our discussions to your circumstances.
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Will and inheritance disputes - fact sheet

A basic guide on what you need to know about Will and inheritance disputes.
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Wills, trusts and inheritance disputes - glossary

If you are involved in a Will, trust or inheritance dispute this will give you a brief guide on the legal terms used in the process.
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Tips

Make sure your Will is valid – get the formalities right

A valid Will must be in writing signed by the person making the Will, or by some other person in their presence and by their direction clear that it is intended to be a Will signed in the presence of two or more witnesses present at the same time signed by the witnesses in the presence of the person making the Will.

Request a medical report on your mental capacity to avoid a challenge to your Will

The validity of a Will can be challenged on the basis that a person lacked the necessary mental capacity to make their Will. It is useful to obtain a medical report from your a GP or other medical practitioner to confirm that you do have testamentary capacity. This is particularly relevant if you are taking medication or suffer from dementia, for example. The report should be provided close to the date you intend to make your Will.

Beware of the risk of undue influence claims against your Will

Undue influence or fraud invalidates a Will. The best step to avoid this type of claim is to ensure that anyone who benefits under the Will is not involved in the Will making process. If you are using a lawyer, arrange the appointment yourself, attend the appointment alone and be clear that the wishes are your own.

Avoid possible claims under the Inheritance Act

The court has power to order a different distribution of your estate if it decides that your Will fails to make reasonable financial provision for spouse/civil partner or former spouse/civil partner cohabiting partner child or step-child (including adult children) anyone financially looked after by the deceased. If you are considering excluding or limiting the provision for any one of the above you should provide detailed reasons why.

Keep your Will in a safe place and let your executors know where they can find it

If your Will is not located when the estate is administered, it may not be divided as you wish because either an earlier Will or intestacy rules (where there is no Will) would instead come into play. Your lawyer can store your Will on your behalf and inform your executors where it is kept.

Keep detailed records of your wishes in your Will

If you are making major changes to your Will, give clear verifiable statements detailing the reasons behind your wishes that your lawyer can record. This will reduce the likelihood of a successful claim against your Will.

If you leave unequal inheritance to your children, let them know why

If you intend to leave unequal inheritance to children or stepchildren or direct your estate elsewhere, consider informing them during your lifetime. Explaining the reasoning behind your actions will mean they can plan ahead, knowing what they will expect to receive financially from your Will.

Instruct a regulated professional to write your Will

If you use a DIY Will, or use a non regulated individual or company to prepare your Will, there is an increased risk that your Will may be challenged. A regulated professional, such as a lawyer, will explain your options and help you make decisions putting your best interests first.

Don’t forget about updating your Will

Many Will and inheritance disputes arise because of an out of date Will. Your circumstances often change and your Will should reflect this. Make sure you regularly check and updated your Will after marriage or divorce after the birth or marriage of children or grandchildren after moving house every few years.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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