Your Trusted Legal Partner - North East Barristers Chambers Legal Services

We have set out below some of the common issues that we are frequently asked about contested wills and contentious probate matters. Whatever your situation, contact us for a free, no-obligation, confidential chat and we can explore your situation in more detail.

In England and Wales, “probate” is the legal authority by which someone can distribute the Deceased’s assets according to either their will or under the intestacy rules (which apply if there is no valid will). The assets owned by the Deceased at the time of their death are referred to collectively as their Estate.

Only the executors named in the will are entitled to see it before a grant of probate is obtained. If anyone else asks for a copy, all of the executors must agree to disclose the will.

However, once a grant of probate has been obtained, the will (and the grant of probate) become publicly available from the Probate Registry. Anyone can obtain a copy for a small fee.

If a grant of probate isn’t required, for example if the Deceased had a small Estate, then the will does not become a publicly available document.

Certain claims in relation to an Estate have a six-month time limit which runs from the date of the grant of probate. For other probate claims, there is a much longer period within which to bring a claim. You should contact us as soon as possible if you are concerned or upset about an issue concerning an Estate.

If you feel that there is something strange about the content of a will or the manner in which it was made, you can enter a ‘caveat’ with the Court. Entering a caveat prevents someone else from obtaining a grant of probate without you first being given the chance to object. You must act promptly. 

Yes, this is still possible if you have grounds to suspect that a will may not be valid.

There are five main grounds on which you can challenge the validity of a will.  

• The will has not been properly executed - For a will to be valid, it must be in writing and must be signed by the testator (i.e. the person making the will) in the presence of two witnesses who must also sign the will in his or her presence. If that has not been done, the “will” is not valid. You may also have concerns as to whether the signatures are genuine, which we can help you to investigate.

• The testator lacked mental capacity to make a will - It is essential that the testator understood that they were making a will, what property they owned and who might have a claim to their Estate (such as family members and other loved ones). The testator must not be suffering from any disorder of the mind or any delusion that would affect that understanding. We can discuss with you whether any mental health conditions or an illness could have affected the testator’s testamentary capacity to make a valid will.

• The testator did not know and approve the content of their will - The testator must also know what the terms of the will say, and they must approve its content. This is usually done by the testator reading the will or having the will read to them before they sign it. There is a rebuttable presumption that a testator knows and approves the content of a will that has been properly executed. Claims that the will is invalid due to a lack of knowledge and approval typically arise where there are allegations that someone has taken advantage of the testator or where the will has been drafted by someone who benefits under its terms.

• The testator was coerced or unduly influenced by somebody else to make the will - If you are concerned that undue pressure was put on the testator to make or change their will, this can render the will invalid. To successfully challenge a will on this basis, there must be no other reasonable explanation for the will saying what it says. Typically, you will need to evidence that the deceased would not have made a will in such terms unless they had been unduly influenced or coerced to do so. Red flags for possible undue influence include homemade wills prepared by someone who benefits substantially from the Estate, the inclusion of someone in a will for the first time, a large increase in the proportion of an Estate being left to a person (particularly if the deceased was dependent on that person when the will was made) and where the deceased was ill, frail or vulnerable when the will was made.

• The testator married or entered into a civil partnership after the will was made - Marriage or entering into a civil partnership automatically revokes any will that was made before that date, unless the will is expressly stated to be made in contemplation of that marriage or civil partnership.
  

If you are concerned about a will’s validity, we can obtain further information from the solicitors who drafted it and, if required, obtain medical records to investigate your concerns further. We can also instruct experts in fields such as psychiatry and handwriting to provide further evidence to build your case.

The will will have no effect. The Estate will instead pass under the terms of the deceased’s previous will or if there is no earlier will, under the intestacy rules.

Under English law, people are entitled to leave their assets to whoever they choose. However, it may be possible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) if you do not stand to inherit anything or only very little from the Estate.

The 1975 Act enables the following categories of people to make a claim for reasonable financial provision from the Estate:

• Spouses;
• Civil partners;
• Cohabitees (provided they lived with the Deceased as if they were married/civil partners for two years immediately before the death);
• Former spouses or civil partners who have not remarried/entered into a new civil partnership (depending on the terms of settlement following the divorce/dissolution);
• Children of the deceased;
• People who were treated by the deceased as a child of the family such as a stepchild; and
• People who were being maintained (i.e. financially supported) by the deceased immediately before their death.

The Court will first consider what provision (if any) is already made for the applicant under the Deceased’s will (or under the intestacy rules if there is no will). If this is not considered to be reasonable financial provision, the Court has a wide discretion to change the way in which the Estate is distributed in order to correct this.

In 1975 Act claims, the Court has to weigh up a number of factors including:

• The current and future financial resources (both income and capital) of both the applicant and the beneficiaries of the Estate;
• The current and future financial needs of both the applicant and the beneficiaries;
• The size and nature of the Estate (in other words, the sort of assets that it comprises of);
• Any mental or physical disabilities of the applicant and the beneficiaries;
• Any obligations that the deceased had assumed towards the applicant and to the beneficiaries;
• In the case of a claim by a spouse or civil partner, the age of the applicant, the length of the marriage/civil partnership and the applicant’s contribution to the welfare of the deceased’s family; and
• Any other matter that the Court may consider to be relevant – such as the conduct of any party.

If your 1975 Act claim is successful, the Court can make a wide variety of orders to ensure that reasonable financial provision is made. These include a lump sum cash payment, payment of a sum of money each month or the transfer of an asset such as a house. We can advise on what you could expect to receive if your claim is successful.

As a rule of thumb, spouses and civil partners can expect a much more generous award than other categories of claimant because their claims are assessed differently.

Be aware that a claim under the 1975 Act must be issued with the Court within six months of the date of the grant of probate. You therefore need to act quickly.

It may be that the deceased promised to leave you a certain asset or sum of money which was not actually included in their will.

If you have relied on this promise and made changes to your detriment, such as giving up work or selling your own house to move in and care for that person, then you may potentially have a claim against the Deceased’s Estate.

The rise of DIY internet wills means that the testator’s intentions may not be clearly and unambiguously set out in the will. Disputes as to the meaning of clauses in a will can also arise even where the will has been professionally drafted.

These types of disputes can cause serious issues in deciding how to distribute the deceased’s Estate. We can assist you with resolving issues as to the true meaning of a will by:

• Providing an opinion on what the terms of the will mean;
• Applying to Court for a declaration as to what the disputed term means; and/or
• Applying to Court for an order that the will be rectified (i.e. changed) either to correct a clerical error or where there was a failure on the part of the will drafter in understanding the deceased’s instructions.

An application to rectify a will should be made within six months of the date of the grant of probate. If you have concerns about what a will means, please do not delay getting in touch with us.

Estates can take up to a year to administer and this can sometimes be frustrating for beneficiaries. That said, an executor may be taking unnecessarily long to act and, in certain cases, may be unable to carry out their duties.

You can apply to have the executors removed or obtain a court order to progress the administration properly. Even a robust letter from us reminding the executors of their responsibilities may be all it takes to get the Estate administered promptly.

We can advise on your options in disputes over the role of executors and trustees, particularly if you feel as though the personal representative is acting in their own interests rather than in the interests of the Estate.

Generally speaking, anyone administering an Estate should remain neutral in disputes between the actual and potential beneficiaries. However, you may personally receive a complaint or claim about the way the Estate is being administered. In this situation, we can advise on the most appropriate response, the potential costs of doing so and help you to resolve the issue swiftly.

The first thing to do is check your current insurance policies and credit cards to see if you have any legal expenses cover that might pay legal costs in this situation.

We will advise you on the costs risks of proceeding with a case and the prospect of recovering your costs from the Estate of the deceased or from your opponent. 

We offer a free first 20 minutes phone call to new clients to the firm, after that we provide the first meeting of up to one hour and a letter of legal advice at a fixed rate.

If you are seeking legal advice it is usually best to arrange an appointment to see us so we can discuss matters fully. We will advise you about your position, what steps you might take and your legal costs. We can offer than by Zoom or Ms Teams or you can come to our office in Chester Le Street.