Contesting a Will After Probate in Essex - Romford, Brentwood, Upminster
Can You Contest a Will After Probate?
Challenging a Will After Probate Granted
Contesting a Will after the Grant of Probate has been obtained is complex.
It is possible to contest the validity of a Will at any time. The reasons for someone to contest a Will can include worry that the Will could be invalid, or if someone who would usually have an interest in an estate has been excluded. Grounds for contesting a Will include lack of testamentary capacity and undue influence.
If a new Will is found after the estate has been distributed 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 Long After Probate Can a Will be Contested?
- 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
Grounds for Contesting a Will After Probate
Grounds for challenge include:
the Will is not in the proper form.
- the person who made the Will was not of sound mind at the time – they did not have 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 pressure 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.
Contested Wills Enquiry
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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 is invalid.
The test is based on case law
It requires that the person making the Will:
- understand that they are making a Will
- understand what property they have and what they are leaving under the Will
- understand if anyone else, such as other family members, may have claims on their estate and the consequences of excluding them from the Will
- not have been suffering from any mental disorder or delusion which influenced their views
Capacity challenges are on the increase. This is due to several factors including an increase in dementia related illnesses, and an ageing population. People are living longer and more likely to be suffering from serious illnesses. However, just because a person is old or suffering from an illness such as Alzheimer’s, does not automatically mean they do not have capacity to make a Will. Capacity can fluctuate. A person may have capacity on the morning but not as the day progresses or vice versa. Capacity is decision specific. Each case is different and needs to be assessed on an individual basis.
Fraud or Forgery
If a Will has been forged or is the result of fraud, it will be invalid. This is more common than you would think.
Undue Influence
Undue influence is when a person coerces someone into changing their Will to benefit themselves. Contesting a Will using undue influence looks at two possibilities:
- Lack of testamentary capacity
- If you believe that the deceased may not have had the ability to make a Will or did not realise what they were signing.
- Lack of knowledge or approval
- For a Will to be valid, the testator (the person who made the Will) must have knowledge of the terms of the Will and approve its content. If they didn’t have the required knowledge and approval then the Will can be challenged and declared invalid.
Inheritance Act Claims
The basis for making a claim is simply that reasonable financial provision has not been made by the deceased for the claimant.
Unfortunately, this simplicity hides a difficulty in determining what might be reasonable financial provision, as there are different classes of claimants and each claimant within each class will require different financial provision.
Rectification Claims
Rectification allows for the correction of Wills in cases of clerical errors or a failure to understand the testator's instructions. Mistakes are caused, most commonly, by either clerical errors or a misunderstanding so that the final document does not truly reflect the intention of the parties.
If the person making the Will is still alive, and has mental capacity, when the mistake is spotted, then rectification is a simple matter of the testator making a new Will or, possibly, a codicil.
If an error only becomes apparent after the person making the Will has died, or has lost mental capacity, then it is a more difficult matter.
An application must be made not later than six months after the date of the grant of probate. If the application is delayed beyond six months, then the application may still proceed but the permission of the court will be required to make the application.
Claims against Executors
Often solicitors become involved in contested Wills because of problems with executors.
Trustees and executors of estates have a great deal of control and power over the assets for which they are responsible.
An executor of an estate (also known as a ‘personal representative’) is the person who is legally responsible for all aspects of the estate of a person who has died, from the moment of death until the estate has been distributed to the beneficiaries.
Their responsibilities include:
- Collecting the deceased’s assets;
- Paying any outstanding debts;
- Preparing accounts detailing the assets and liabilities in the estate;
- Wrongly taking estate assets
- Distributing the estate in accordance with the Will (or intestacy rules in the event that there is no Will).
In most cases a deceased’s estate will be administered correctly and distributed. However, mistakes can be made and sometimes the person acting as the Personal Representative or trustee can act in a way which is inappropriate for the role e.g., act in a biased way or putting their own interests before the beneficiaries.
Claims can be made against an executor [or administrator] for up to 12 years after the death if there is an allegation that any of their duties were not carried out correctly.
Examples
- Failing to Secure Estate Property
- Hiding Estate Assets
- Mismanagement of Assets
- Overpaying Creditors
- Misappropriation
- Merging Personal Funds and Estate Funds
- Delaying the Probate Process
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
With inheritance disputes, contested Wills and contentious probate claims you often having grieving family members and so mediation and alternative dispute resolution maybe worth exploring.
Costs of Contesting a Will After Probate
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 – sadly parties often adopt entrenched positions in such matters
During a Will dispute, each person or party is responsible for paying their own costs.
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, undue influence “has to come from more 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.
However, 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.
Contesting a Will after the issue of grant of probate is usually more complicated than doing it prior to the issuing of the grant of probate or prior to it being distributed to the beneficiaries, and the chances of success are generally lower.
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.
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 our Chairman and the firms' Compliance Officer for Legal Practice
Trudi is an Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.
