Contentious probate claims relate to any dispute upon the contents of a deceased will, whether the deceased should have provided for individuals following their passing and how their estate is to be administered.
Losing a loved one is difficult, but add to this a dispute and a sad situation can quickly become confrontational and complex.
Establish the reason for challenging the Will
Wills can be challenged for several reasons including:
- If the deceased lacked mental capacity
- The Will was not properly executed/witnessed
- There was undue influence on the person making the Will
- The Will is fraudulent or a forgery
- A family member who was dependant on the deceased has been excluded or not provided reasonable provision
Once you have decided the grounds on which you wish to contest the Will, there are various options available to families looking to resolve the issue.
Unless there is going to be a Coroner’s Inquest the GP or hospital should issue a medical certificate so that the death can be registered. Once the death has been registered you can obtain a death certificate.
Obtaining the deceased’s GP and hospital records can also assist in supporting certain claims.
If there was a Will obtain a copy as it will identify who are the Executors (the people who will be responsible for administering the estate) and who will benefit from the estate. If there is no Will, then it is likely the rules of intestacy will apply.
The first step is for a Letter Before Action to be served by the person challenging the Will to the Executors. The Executors must respond and either accept, negotiate, or dispute the claim. If there are to be negotiations, then it is preferable that the parties consider mediation. If there is a significant dispute, then it maybe that the only way to resolve the matter is to commence court proceedings.
Inheritance Act Claims
Under the Inheritance Act 1975 a Will can be contested within 6 months of Grant of Probate being issued, if it fails to make reasonable provision for spouses or children. If a family member has been deliberately excluded from a Will, then the person making the Will should give good reasons why that family member has been excluded in a note accompanying the Will.
A caveat is a formal notice that is lodged at the probate registry which stops the Executors from administering the estate. A caveat can last up to 6 months unless appealed or extended.
A Caveat can be put in place if there is a concern over the Will authenticity. For example, if you believe the Will is a forgery, or a more recent Wills exist.
A caveat can also be used if the person who has been appointed as an Executor is not a suitable person to undertake this task.
The grounds for removal of an ‘unsuitable’ executor are:
- Incapacity– because of some physical or mental disability which prevents them from performing their duties.
- Disqualification– because of conviction of a crime resulting in imprisonment
- Unsuitability– because of serious misconduct or a conflict of interests.
Unsuitability is the most common ground on which applications for removal are threatened and made. The conduct must be serious such as stealing from the estate or causing loss, for example by making payments not authorised under the Will or breaching the executor’s legal duties.