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Contentious Probate & Inheritance Claims

Contentious probate issues can arise both before or after a grant of representation has been obtained.

What is a Grant of Representation?

A grant of representation is a formal Court document issued by the District Probate Registry (save in respect of small estates) to the named personal representatives of the deceased enabling them to administer and distribute the deceased’s estate. A grant of representation may be:-

Grant of probate to up to 4 executors where the deceased leaves a valid Will – chosen executors will typically be named in the Will. If there are no named or no surviving executors the closest living relative(s) (aged 18 or above) of the deceased can apply for the grant;

Grant of letters of administration must be obtained where the deceased dies intestate (without leaving a valid Will) – the order in which relatives may apply for letters of administration is set out in statute. The named personal representative/s must administer and distribute the estate in accordance with the rules of intestacy.

Grant of letters of administration with Will annexed provides conclusive proof of the validity of the will – this form of grant may be applied for in cases where a sole executor was appointed but they have renounced probate or the grant has become invalid due to divorce, dissolution or death – the order of priority in which those with an interest in the estate may apply for this form of grant is again set out in statute.

Once a contentious probate claim has been issued, a grant of representation cannot be made until the proceedings have been disposed of (unless otherwise directed by the Court).

Please contact our Litigation Department on our mobile friendly number 033 33 22 1000 or 0800 987 8156 to arrange a meeting and speak to a Solicitor. Alternatively, send us an email at info@kewlaw.co.uk for more information. 

How can we Assist with a Contentious Probate Claim?

Solemn Form

If the party propounding (putting forward) the Will under a contentious probate claim is successful it will be deemed proved “in solemn form” (a grant in relation to a non-contentious probate will be proved “in common form” unless and/or until challenged at a later date).

Provided proper notice has been given to all persons interested, a probate that has been granted in solemn form is irrevocable subject to the following exhaustive exceptions:-

If a Will of a later date is discovered to exist after the Order has been made a probate granted in solemn form may be revoked in favour of the later Will;

If the Order has been obtained by fraud it may be set aside.

Contentious probate claims

Our experienced Disputes and Litigation Department can assist you in relation to all areas of contentious probate including:-

Challenging the validity of a Will and seeking pronouncement for or against a Will in solemn form:-

In the event of dispute as to whether a Will (or other document) is a valid testamentary document a claim may be brought by an interested person for the Court to determine the validity thereof.

A claim may be brought by an executor in response to a challenge made by someone else disputing the validity of the Will such as lodging a caveat with the Principal Probate Registry. In the alternative the person disputing the Will may bring the claim themselves. Such a claim may be brought by a beneficiary purporting to have an entitlement to the estate under an earlier valid Will or intestacy.

Claims to determine whether a person has an interest in an estate

An interest action may be brought to resolve a dispute as to the interest of someone claiming an entitlement to a grant of representation in respect of the deceased’s estate.

Such challenges more commonly arise if a person dies intestate or a named executor has themselves passed away. A claim of this nature may involve issues of legitimacy and pedigree in respect of family succession where for example there is contention as to whether someone is a child of the deceased.

A person will not be able to propound a Will if they do not have sufficient interest such as the beneficiary of a void gift by reason of them (or their spouse) witnessing the Will.

Claims for revocation of a grant of representation already made

Should an allegation arise as to the validity of a Will or that a grant of probate or letters of administration with Will annexed ought not to have been made after a Will has been proven in common form a claim can be made for revocation of the grant. If a claim for revocation disputing the validity of a Will is disputed it will also proceed as a claim for proof of the Will in solemn form.

Where letters of administration have been granted a claim for revocation can be sought in the event of a Will being subsequently discovered which if defended will also proceed as a claim for pronouncing for or against a Will in solemn form or on the grounds that the grant has been made without sufficient title to it which if defended becomes an interest action.

There is no statutory limitation period (being the period of time in which a Claimant may begin an action for redress) in relation to contentious probate claims however this does not fetter the Court’s discretion to strike out claims that are frivolous, vexatious or an abuse of process.

Grounds for Disputing a Will:

A Will may be contested on the following grounds:-

Want of due execution:-

A valid Will must be in writing and generally signed at the end by the testator (or by someone else in their presence and under their direction) in the simultaneous presence of two or more witnesses. Accordingly, the validity of a Will may be disputed on the basis that these requirements have not been met i.e. the purported signature of the testator is a forgery or the witness(es) were not present at the time the testator signed the Will.

Additionally at the time of execution of the Will the testator must intend to make “a revocable ambulatory disposition of the maker’s property which is to take effect on death”.

The burden of proving that a Will was duly executed falls to the person seeking to propound the testamentary document. The Court must be satisfied that the document is the last Will of a free and capable testator. The default position is that there is a rebuttable presumption of due execution if on the face of it a Will appears to have been properly executed.

Lack of capacity:-

A person must have the requisite mental capacity at the time of executing their Will meaning they must:-

  • Understand what they are doing (the capacity to understand is not to be equated to a test of memory);
  • Understand the extent of the property that they propose to dispose of under the Will;
  • Be able to comprehend and appreciate the claims to which he ought to give effect,; and,
  • Not being affected by any disorder of the mind which would poison their affections, pervert their sense of right or prevent the exercise of their natural faculties, to that extent a testator must be able to exercise his decision-making powers.

Again there is a rebuttable presumption of capacity if a Will has been duly executed and attested.

Undue influence:-

The Court may decline to prove a Will if it can be established that the testator was subject to undue influence when the Will was made.

Undue influence takes the form of unlawful or excessive pressure or manipulation exerted by a third party. The test for undue influence is fairly strict and requires coercion beyond the normal realm of influence or persuasion such to cause the testator’s own discretion and Judgment to be overborne.

Undue influence can take many forms from physical violence and verbal bullying to wearing down a vulnerable and frail testator in such a way so as to induce that person into acquiescing or agreeing to anything for the sake of quietness.

Lack of knowledge or approval:-

If there is found to be capacity and due execution this gives rise to a proper inference that there was knowledge and approval on the part of the testator. However in certain circumstances that “excite the suspicion of the court” such as where a party prepares a Will under which they benefit affirmative proof of knowledge and approval will be required. In order for the Court to pronounce such a Will to be valid the suspicion must be removed.

Affirmative evidence will also be required as to the testator’s knowledge and approval where they are deaf, dumb or blind.

Where there is insufficient evidence to prove undue influence but the Will has been executed in suspicious circumstances the Court may still refuse to prove the Will on the basis that the testator lacked knowledge and approval of the content.

Revocation:-

A case against proving a Will may be pursued on the basis that it can be proven that the testamentary instrument has been revoked by any of the following:-

  • The subsequent marriage or civil partnership of the testator (unless it appears they were expecting to be married to a particular person and that they intended that a disposition in the Will should not be revoked by the legal union);
  • Due execution of a later Will or codicil;
  • Duly executed declaration of intention to revoke;
  • Destruction of the Will by the testator or by some person in his presence by his instruction with the intention of revoking the same.

Fraud:-

It may be possible to dispute a Will on the grounds that it has been made as a consequence of a fraud which may include deceit, fraudulent misrepresentation or breach of trust or fiduciary duty. Such claims will be subject to rigorous scrutiny and any pleading must be supported by strong evidence in support of the allegations being made.

Forfeiture:-

A person cannot benefit under a Will if they have unlawfully killed the testator or otherwise unlawfully procured the testator’s death. Accordingly in extreme circumstances a Will may fail if the testator’s death has been brought about by a beneficiary. Save where a beneficiary has been convicted of murder the Court has the power to modify this rule having regard to the relevant conduct and circumstances.

Claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”)

Certain qualifying persons may be able to make a claim against a deceased’s estate if the deceased did not make reasonable financial provision for them to take effect upon their death whether under a Will or intestacy including those with the following relationships to the deceased:-

  • A surviving or former spouse or civil partner;
  • A child or person treated as a child of the family;
  • A person who during the whole of the two years ending immediately before the date when the deceased died was living in the same household as the deceased as if they were a married couple or civil partners;
  • Any other person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased. A person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.

Time limits

Subject to the Court’s discretion a claim under the Inheritance Act must be made within 6 months of a grant of probate.

Reasonable financial provision

An assessment under the Inheritance Act involves an objective assessment asking “has the deceased’s estate made reasonable and financial provision for the class of the potential applicant by the standard applicable to that applicant?”.

In respect of a spouse or civil partner reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for a spouse or civil partner to receive whether or not that provision is required for his maintenance. For all other categories of person it is financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

Maintenance is not defined by the Inheritance Act however the Courts have construed the relevant standard by reference to what it would be reasonable for an Applicant to live on at neither a luxurious nor poverty stricken level.

If the Court considers that reasonable financial provision has not been made in determining whether and in what form to exercise its powers it will have regard to various factors depending on the class of qualifying person including but not limited to the following:-

  • The financial resources and financial needs which any Applicant or beneficiary under the estate has or is likely to have in the foreseeable future including their earning capacity and financial obligations and responsibilities; and/or,
  • Any obligations and responsibilities which the deceased had towards any Applicant or beneficiary of the estate; and/or,
  • The size and nature of the net estate; and/or,
  • Any physical or mental disability of any Applicant or beneficiary of the estate; and/or,
  • The relevant conduct of any person; and/or,
  • The manner in which the Applicant is being or might expect to be educated or trained; and/or,
  • The age of an Applicant spouse, civil partner or equivalent cohabitee and the duration of the legal union and/or cohabitation; and/or,
  • The contribution made by an Applicant spouse, civil partner or equivalent cohabitee to the welfare of the family including any contribution made by looking after the home or caring for the family; and/or,
  • The length of time, basis and extent on which the deceased maintained the Applicant; and/or,
  • The liability of any other person to maintain the Applicant.

Specialist advice and assistance

CContact Kew Law for Specialist Contentious Probate & Will Dispute Advice today on 0800 987 8156 or info@kewlaw.co.uk for advice in relation to all aspects of contentious probate including:-

  • Engaging in alternative dispute resolution to resolve a dispute;
  • Jurisdiction and bringing any claim before the right Court;
  • Complying with and overcoming statutory time limits;
  • Assisting in the identification of persons with an interest or entitlement in respect of a claim and/or under a Will;
  • Ensuring any necessary pre-action compliance is carried out;
  • Entering a caveat to postpone a grant of probate if there is a dispute as to who is entitled to apply for probate or whether there is a valid Will etc.;
  • Preparing and bringing or defending a contentious probate and/or Inheritance Act claim including but not limited to preparing and dealing with the Claim Form, Particulars of Claim, Defence, Counterclaim, Reply to Defence, disclosure of testamentary and other documents, witness evidence, obtaining of expert evidence and interim Applications as necessary;
  • Where the burden of proof lies;
  • The merits and awards of a possible Inheritance Act claim;
  • Dispositions intended to defeat Applications for financial provision;
  • The issue of costs and recovery thereof.

 

This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the contents, or for any consequences of relying on it, is assumed or accepted by Kew Law LLP.

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