Contesting a Will After Probate in Essex
Can You Contest a Will After Probate?
Contesting a Will after the Grant of Probate has been obtained can be complex.
A Grant of Probate is the legal document which provides authority for the persons applying, generally an Executor or Administrator, to manage the estate of a deceased person.
It is possible to contest the validity of a Will at any time, following death. The most used reasons for someone to contest the validity of a Will can include concerns that the Will has been signed by a testator without holding testamentary capacity, that the testator has been coerced or unduly influenced as to the contents of their Will and that a Will has not in the correct format or signed or witnessed incorrectly.
Alternatively, if a new Will is found after the estate has been distributed to the original beneficiaries, then the beneficiaries under the newer Will can attempt to recover their entitlements from the personal representative who distributed an estate incorrectly.
The persons who took out the original grant of probate or, if different, the executors named in the later Will, can revoke the grant of probate. At the same time, an application should also be made to take out a new grant in favour of the personal representatives to the later Will.
How to deal with contentious probate
Contentious Probate is the legal term when there is a dispute over a Will or someone contests an estate. It is also known as a “Will dispute” as it disputes the validity or the interpretation of what is believed to be the deceased's last Will.
Contentious Probate is the term used to refer to disputes arising in respect of a Will, or an Estate. This can encompass disagreements between executors, beneficiaries and those who may have been exccluded from a Will.
The range of disputes that fall under this heading are many and include:
- Challenges over the validity of a Will or Codicil
- Claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975
- Disputes over the administration or distribution of a deceased’s estate
- Disputes over the Costs incurred by those administering the estate
- Challenging or replacing executors or trustees who fail to take up their duties or deal with their duties adequately
Contested Wills Enquiry
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Grounds for Contesting a Will After Probate
Grounds for challenge a Will after the Grant of Probate is sealed include that:
- That the Will is not in the proper form – Wills are strictly required to meet the provisions set out in Section 9 Wills Act. Common claims include that a Will has been signed or witnessed incorrectly.
- the person who made the Will was not of sound mind at the time – they did not have testamentary capacity to make a Will
- the person did not understand, know or approve the contents of the Will
- the Will was made as a result of undue influence or coercion from a third party
- the Will was forged or is fraudulent
Lack of Due Execution
There are strict rules are governing the signature of Wills. It is not uncommon for the person making the Will, and their witnesses, to get this wrong. Where a professionally drafted Will is invalid as a result of drafting errors we can advise on bringing claims for professional negligence against solicitors or Will writers.
Lack of capacity
Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid Will. If the person making the Will (testator) lacks testamentary capacity at the time the Will is executed, the Will can be declared invalid.
Fraud or Forgery
If a Will has been forged or is the result of fraud, it will be invalid.
Undue Influence
Undue influence can be argued to have occurred when a person coerces someone a testator into changing their Will, often to directly or indirectly benefit themselves.
Rectification Claims
Rectification allows for the correction of Wills in cases of clerical errors or a failure to understand the testator's instructions.
Claims against Executors
Often solicitors become involved in contested Wills because of problems with executors. This can involve an executor misappropriating estate assets, failing to give effect to the terms of the Will, or refusing to take action to administer the estate altogether.
Inheritance Act Claims
The basis for making a claim is that reasonable financial provision has not been made by the deceased for the claimant.
How to contest a will after probate has been granted?
Resolving the Dispute
Once the Grant of Probate has been issued, the longer the delay in bringing a claim the more likely it is that the executors will have distributed the deceased’s assets to the beneficiaries. It may be possible to recover the assets from the beneficiaries, but there is a risk that they will have been spent or sold.
There are different limits on how long you have to make a challenge depending on the basis of your claim:
- Rectification claims: 6 months from the date of grant
- Beneficiary making a claim against the Will: 12 years from date of death
- Fraud/claiming against an executor for appropriating estate assets: No time limit applies
- Inheritance Act claim (financial provision): 6 months from the date of grant of probate
Some of the above claims will need to be made very quickly following the grant of probate. It is advisable to act as quickly as possible because as time passes, it can become increasingly difficult to trace assets.
It is preferable that any claim be brought before probate has been granted to avoid the risk of any of the estate assets being distributed. This is often achieved by entering a caveat at the Probate Registry to prevent the grant being issued for a period of six months
If you do not consider that the Will makes reasonable financial provision for you, you may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Such claims must be brought within 6 months of the date of Grant of Probate and letters of Administration. It can be possible to agree a standstill agreement to either extend or freeze this timeframe.
Process of Contesting a Will After Probate
There are strict times limits and rules around disputing a Will so make sure you seek legal advice from a specialist. It can also be a very emotional and stressful process.
Resolving the Dispute
Often, inheritance disputes, contested Wills and contentious probate claims can be settled at mediation, or via another method of alternative dispute resolution. Mediation is a voluntary process, which involves all parties (sitting together or separately) to meet with a mediator, whose role as a neutral third party is to narrow any points of issue between parties and find any common ground. The mediator will then assist parties in reaching settlement. Mediation is often successful and presents parties with a far swifter and cheaper method of amicably settling a dispute.
How can you stop your Will from being contested?
To minimise the chances of a Will from being contested, or subject to a Will dispute, you should ensure that you use a regulated Solicitor when creating a Will. Your solicitor can provide specialised expertise on best practices for writing and signing your Will to ensure that no obvious avenues to challenge your Will exist. However, it is impossible to completely prevent a challenge to your Will.
Costs of Contesting a Will After Probate
Cost Breakdown
The cost to contest a Will depends on:
- The type of dispute
- The evidence available
- The number of parties who are involved in the dispute
- Whether the parties are willing to negotiate
Frequently asked Questions About Contesting a Will After Probate
In order to prove undue influence, it is necessary to produce evidence to show that the deceased was forced physically or mentally against their own volition to make a Will that they would otherwise not wish to make.
As there is unlikely to be direct evidence, allegations of undue influence often come from circumstantial evidence.
The burden of proof for establishing undue influence lies with the person asserting it. They must demonstrate undue influence on the balance of probabilities i.e. was it more likely than not that there was undue influence when the testator made their Will. This can be a high bar to overcome.
If a court decides that a Will is invalid, remember that the estate is distributed at the discretion of the court. The court normally distributes the estate in line with the most recent valid version of the Will, or failing the existence of an earlier valid Will, via the intestacy rules.
There are different limits on how long you have to make a challenge depending on the basis of your claim. Some of these claims need to be made very quickly following the grant of probate. It is advisable to act as quickly as possible because the longer you leave it, the harder it becomes to trace assets.
There are different limits on how long you have to make a challenge depending on the basis of your claim:
- Rectification claims: 6 months from the date of grant
- Beneficiary making a claim against the Will: 12 years from date of death
- Fraud/claiming against an executor for appropriating estate assets: No time limit applies
- Inheritance Act claim: 6 months from the date of grant of probate
Until such time as the Grant of Probate has been sealed, the Will is not a public document and only Executors/Administrators are entitled to see a copy. You may ask for to see a copy of the Will, however, the Executor/Administrator is not obliged to disclose a copy to you before the Grant of Probate is sealed.
Following the sealing of the Grant of Probate, the Will becomes a public document and is accessible to any party.
If you need to obtain a copy of a Will before the Grant of Probate, you should seek legal advice if the Executor will not release it.
After grant of probate has been issued a Will becomes a public document and anyone can view it.
A no contest clause is sometimes written into a Will to discourage beneficiaries from contesting the Will. The clause may state something that if a beneficiary disputes the Will, they will lose what they would otherwise have inherited.
Mullis & Peake have a team in contested Wills ready to help you. Contact us online today or call us on 01708 784000.
Alternatively, request a call back to have one of our people contact you at a time that suits.
Our latest insights
Martyn is a consultant and specialises in contested Wills and personal injury.
Trudi is a Senior Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.
