Do I have a Contentious Probate Claim?

Research shows that claims against wills and estates are on the rise and it can be no coincidence that we are entering the greatest wealth transfer of UK history, said to be valued at over £5.5 trillion to 2050. Lawrence Hiller-Wood is a lawyer in our Contentious Trusts and Probate team. Below, he considers the latest trends in this growing area, and the steps to take if a claim is suspected.

The growing appetite for litigation in this area is likely to be the product of a combination of cultural and socio-economic factors, namely:
•    Prohibitively high property prices in England and Wales which leave younger generations increasingly dependent on inheritance to get on the property ladder
•    Increasing cost of living and wage stagnation which has seen a generation of millennials worse off financially than their parents
•    Disproportionate levels of wealth tied up in the estates of older generations (compounded by the rise in property values of older homeowners)
•    An ageing population with advancing health issues which may impact capacity to execute a will
•    Dynamic family arrangements including second marriages and step-families
•    More recently, the Coronavirus Pandemic and the introduction of so called “lockdown wills” which may have been witnessed in an unconventional manner (if at all).

How can I challenge a will?

A will can be challenged on a number of grounds, each of which require technical analysis, and many of which can exist at the same time. In a nutshell, wills can be challenged for the following reasons:
•    The Deceased person signing the will lacked capacity to enter into it at the time it was created/signed.
•    The Deceased was being unduly influenced by someone who may have stood to benefit from the will’s terms or there are other suspicious circumstances surrounding the will’s creation.
•    The Deceased did not fully know or approve of the terms of his or her will, or there is an operative mistake in the drafting which needs to be rectified
•    The will does not comply with each of the strict legal requirements set out in Section 9 of the Wills Act 1837 (frequently seen in homemade or “DIY wills”)
•    The will is a forgery or there has been fraud involved.

Where a will challenge is suspected, it is important that advice is sought at the earliest possible opportunity so that steps can be taken to stop a grant of probate in the estate and ensure that estate assets are preserved while the dispute is properly investigated.

What if I am unhappy with the will or I have been left out?

Sometimes a will may be perfectly valid, and there is no challenge to the legal effect of the document, but the outcome of the will is that it fails to provide for the reasonable needs of one or more qualifying claimants who require financial provision out of the estate. Such claims are governed by the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

Qualifying claimants are set out in Section 1(1) of the Act as follows:
•    The spouse or civil partner
•    Former spouse or civil partner
•    A cohabitee
•    A child
•    Any person treated as a child of the deceased
•    Any person being maintained by the deceased.

The courts have a very wide discretion in deciding claims in this area and will consider a broad range of relevant factors in determining whether to make an award, however evidence needs to be gathered quickly as the claim needs to be issued within 6 months of the date of the grant of probate. For this reason, it is vital that specialist advice is sought as a matter of urgency. In rare cases, the court will allow claims to be brought after the 6 month period.

Are there any other claims I can bring?

While not an exhaustive list, claims arising from estate disputes may include
•    Unfulfilled lifetime promises and deathbed wishes made by the Deceased
•    Disputes between beneficiaries
•    Claims against executors and trustees (including removal)
•    Interpretation and rectification of defective wills
•    Disputes over assets of an estate
•    Burial disputes
•    DNA testing for wills and probate
•    Professional negligence relating to the preparation and administration of Wills or to associated tax / trust advice.

If you require advice in any of the above areas, or have any enquiries, please do not hesitate to contact Lawrence Hiller-Wood on lawrence.hiller-wood@ts-p.co.uk or call 01892 510000.