Wills and Probate Disputes – Do you have a claim?

Written by Nicholas Kramarenko - Solicitor, Litigation Department

The passing of a loved one is never easy for those left behind. Thoughts of past times, funeral arrangements and what should be done with their belongings are just a few things that will lie heavily on a grieving mind. It can often be difficult to know what to do next.

When someone passes away, their assets will be dealt with according to their Will, if they have one. To do this, in most cases their executors must acquire a Grant of Probate.

Most probates go by without major problems. However, it can be terribly stressful when something does go wrong. This could be a claim by someone in the family, or perhaps you are not being left what you were promised, or it could simply be things are not progressing or going in the right direction as planned.

In this post, we will look at some of the most common legal problems that can arise concerning someone’s Will and probate.

The Will

Someone, or you, may wish to claim that the Will is invalid.

There are a number of different claims that someone can make against a Will being valid, but we will explore some of the most common below:

1. Construction Issues

A person’s Will must strictly comply with certain standards to be valid under the law. This is why it is always advisable to instruct a solicitor to help you make one. If a Will is not properly made, it may not be valid at all. It could be that it is not sufficiently clear, or has not been signed properly, or one of a myriad of different issues.  If you are unsure about how a Will is worded, or what is meant in certain parts of it, you will want to seek professional advice and guidance at an early stage to ensure the Will is valid. This is particularly true for ‘home-made’ Wills.

2. Lack of Mental Capacity

This is where someone claims that the Will is invalid due to the deceased not having mental capacity at the time they made the Will. This could be due to dementia or any number of other things that affect a person’s capacity to make rational decisions.

3. Want of Knowledge and Approval

This is closely related to lack of mental capacity, but can stand by itself. As the name suggests, it could be claimed that the person writing the Will did not have adequate knowledge of the Will’s contents, and/or did not properly approve of it.

4. Fraudulent Calumny

This is where someone, by feeding them false information, sets the person writing the Will against someone else who would otherwise benefit. For example, Sibling A tells the person writing the Will that Sibling B has been stealing things from them (which is not true), which causes the person writing the Will to not leave anything for Sibling B.

5. Undue Influence

This is where someone pressurises the person writing the Will into changing it. They could threaten the person writing the Will in a variety of ways, including withdrawing care or physically threatening them, particularly when they are vulnerable.

If you have received a claim like this, or wish to make one, it is important that you acquire independent legal advice.

Inheritance (Provision for Family and Dependents) Act 1975

This is a unique type of claim that is sometimes brought against a person’s estate, as it is not challenging the Will by itself (although, sometimes both types of claim can be brought simultaneously).

This act allows certain dependents – including spouses, children, and other types of claimants – to apply for a portion of the deceased’s estate, in lieu of the fact they have been excluded from that person’s Will unexpectedly or you are not receiving as much as expected. A key part of these claims is that an element of financial dependence on the deceased is required.

Probate

Even if a Will is not disputed, there can be problems that arise with the probate. Some common problems that can arise include:

1. A long time has elapsed since the person passed away, and their executors have still not applied for a grant of probate.

2. A grant of probate has been acquired by the executors, but the estate is not being distributed correctly or at all.

3. You do not believe that the executors are doing their job properly in some other way, such as they are not acting in the beneficiaries’ best interests or they are not maintaining the assets in the estate properly.

These problems have specific solutions, usually acquired through court action. However, often these problems are solved by negotiation or mediation beforehand.

This is not an exhaustive list of claims and issues that may arise, but if you have received a claim like this, or wish to make one, it is important that you acquire independent legal advice as soon as possible.

If you would like advice or assistance, please do not hesitate to contact us.

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