When somebody dies, their estate should be distributed according to the provisions set down in their Will, or under the intestacy laws if they did not leave a Will. If you feel that you need advice in contesting a Will or you find yourself involved in a dispute, the specialist Wills and Probate team at Stirling Ackroyd Legal can help you.
Do you have an interest?
You can contest a Will if you believe that you have, or you may have a beneficial interest in the estate of the deceased (the testator). It is important to seek legal advice at the earliest opportunity if you are considering contesting a Will, and your specialist solicitor can help to ascertain if you have a valid claim.
Delaying the process
If this is the case, you can apply for a ‘caveat’ which will delay the distribution of the estate until the matter is resolved. The caveat will be granted for six months, although this can be extended.
If the dispute cannot be resolved under the caveat, it may be necessary to go to court, and claims such as these are usually based around one of the following:
- That the Will itself was not valid in law. This might be because the testator did not have sufficient mental capacity when they made their Will, because they were acting under undue influence or because there has been a lack of proper execution
- That you are a dependent for whom proper provision was not made
- The Will itself cannot be found
- Property forming part of the estate was actually owned by someone else, wholly or in part
- Mistakes in the drafting of the Will itself
Have a valid claim to contest?
Every case is different, and the first step is to obtain legal advice to determine whether you may have a valid claim in contesting a Will. Please contact a member of our team in confidence for advice and we will be able to help you.
Contentious probate arises when there is a dispute over the validity of the Will of a deceased person (the testator), or regarding the way in which their estate is distributed. For example, a dispute may arise if you feel that the Will did not provide for you in the way that you had been promised, or because the Will itself could be invalid due to the circumstances in which it was made.
Disputes are common
Every case of contentious probate is unique, and the legal experts at Stirling Ackroyd Legal have diverse experience in this area. We fully understand that disputes often give rise to conflict within the family, and we fully appreciate the stressful nature of these situations, especially when family members are involved. We will handle your case with sensitivity, providing straightforward advice and looking after your interests at all times.
You can contest a Will if it was not made legally or if there is another issue that renders it invalid. A valid Will must meet all of the following criteria:
- It must be in writing
- It must be made voluntarily and without undue influence
- The person making the Will must be over the age of 18
- They must be of sound mind, meaning that they have the mental capacity to make the Will and understand that it is legally binding
- The Will must have been signed in the presence of two witnesses, who must also sign the document
Making a claim
If you do wish to issue a claim against an estate, this will be subject to strict time limits and you must make your claim within six months of the Grant of Probate, or of the letters of administration if the person died without leaving a Will. It is important to act quickly because the process will become more complex if Probate has already been granted.
Who can make a claim?
If you feel that the testator did not make appropriate financial provision for you when they made their Will, you may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975, which sets down who is entitled to pursue a claim, including:
- The spouse of the deceased person
- The former spouse of the deceased person, if you have not since remarried
- The partner of the deceased, if you have lived together for at least two years prior to their death
- The child of the deceased person, or someone who was treated as a child of their family
- Someone who was being financially supported by the deceased
The grounds for making a claim
It will be necessary to establish the grounds upon which you are making your claim, meaning that you must show that one of the following applies to your case:
- The Will does not reflect the wishes of the deceased person
- A mistake was made by the solicitor drafting the Will, e.g. certain details or particular clauses were drafted incorrectly.
- The Will was made under undue influence.
- When they made their Will, the testator did not have the capacity to fully understand what they were doing or what was included in the Will
- There has been a lack of valid execution. Valid execution means that the Will must be in writing and it must have been properly signed and witnessed
- You believe that the Will was forged or that fraud has taken place
What to do next
If you feel that you may have a claim against the estate of someone who is deceased, Stirling Ackroyd Legal can help you. Many cases of contentious probate are decided upon their facts, so it is important to seek legal advice as soon as possible, and our solicitors specialising in Wills and Probate law can advise you on the next step based on your own individual circumstances. Please contact us and we will be very happy to help you.
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