Disputing a Will

Contentious probate is a legal term that refers to a dispute that may arise after someone’s death concerning the distribution of their Estate.

With increasing numbers of second and third families, it is becoming common for Wills to be contested and for confusion to arise as to who is entitled to what.

Grounds for challenging a Will

It is possible to challenge a Will on several grounds:-

1. Lack of testamentary intention – a document will only operate as a Will if it was intended by its maker to operate as a Will.

2. Lack of due execution – a Will must comply with the requirements of Section 9 of the Wills Act 1837 and is not valid unless:

• It is in writing and signed by the person making the Will (the Testator)
• It appears that the Testator intended by his signature to give effect to the Will.
• The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time.
• Each witness either:
  • Attests and signs the Will
  • Acknowledges their signature in the presence of the Testator (but not necessarily in the presence of any other witness)

3. Lack of testamentary capacity – the Testator needs to be capable of understanding:

• The nature of their act and its effect.
• The extent of the property of which they are disposing.
• The claims to which they ought to give consideration.

4. Lack of knowledge and approval – did the Testator know and approve the contents of the Will?  Were there any suspicious circumstances?

5. Undue Influence – this is harder to establish than lack of knowledge and approval. Undue influence has a narrow definition and coercion must be proved. The test is whether the Testator would say after all is said and done “This is not my wish but I must do it”.

6. Fraud and forgery – what must be proved here is dishonesty.  As a serious allegation it requires a high standard of proof.

Inheritance (Provision for Family and Dependants) Act 1975

Contentious probate cases are different from claims brought under the Inheritance (Provision for Family and Dependants) Act 1975. This Act provides a route by which certain classes of people are entitled to make a claim against the estate of someone who has died if it does not make sufficient financial provision for them.  The eligible claimants are:

1. The spouse or civil partner of the deceased.
2. A former spouse or former civil partner of the deceased but not one who has formed a subsequent marriage or civil partnership.
3. A child of the deceased.
4. Any person (not being a child of the deceased) who was treated by the deceased as a child of the family.
5. Any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased.

The application to the Court is on the basis that the Will or intestacy did not make reasonable financial provision for the applicant.

If you would like to discuss any potential contentious probate matter or claim under the Inheritance (Provision for Family and Dependants) Act 1975, please contact me on 0121 243 3157.

Kate Garrett
Solicitor

Dispute Resolution and Head of Employment Law

To find out more about Kate, click here
To contact Kate call 0121 693 2222 or click here