Contesting Probate and Wills
It is possible for seemingly valid wills to be contested. Over the last few years, will disputes have become increasingly common.
The majority of disputes arise when family members or other dependants feel aggrieved that they have not been adequately provided for by the deceased.
The grounds for contesting a will are considered below.
For example, if the signature of the person making the will has been forged.
• Will was not signed/witnessed correctly
This often occurs with homemade wills. Even if the will is still deemed valid, further unnecessary legal expenses may be incurred.
The person making the will must have capacity, which means they must be of “sound mind, memory and understanding”. They must understand the nature of making a will and the extent of the property they are disposing of. If a person lacks capacity when making a will, the will may not be valid and could be contested once that person dies.
Again, the possibility of a claim due to lack of capacity can be significantly reduced if a Solicitor drafts the will. At RDC Solicitors, we keep detailed files notes and if applicable any medical notes and guidance to prove the Deceased had capacity when they made the will.
Inheritance (Provision for Family and Dependants) Act 1975
Even a valid will could be contested by a family member or other dependant under the Inheritance (Provision for Family and Dependants) Act 1975.
To make a claim under the Act there are various matters to consider.
1. Time limit and Jurisdiction
Any claim would need to be started within six months of the date of the grant of representation of the estate.
Additionally, the deceased will need to have died whilst domiciled in the jurisdiction of England and Wales.
2. Category of Applicant
A claim under the Act cannot be brought by just anyone. To claim, you must show you fall within one of the categories of applicant as set out under Section 1 of the Act. Categories include children of the deceased, spouse etc.
If you fall within one of the categories of applicant, the next matter to consider is the ground. The grounds are set out under section 1 (2) of the Act.
4. Standard of Provision
Even if an applicant can prove the above, the court will not necessarily grant an order. They will consider various factors, including:-
• The size and nature of the net estate of the deceased
• The financial resources and needs of the applicant and beneficiaries
• Whether the applicant was financially dependent on the deceased
• The conduct of the applicant or any other person. For example, has the applicant done anything to tarnish the relationship?
Other factors may also be taken into account depending on the category of applicant. For example, in the case of a spouse or civil partner, the court will take into account the age of the applicant and the length of the marriage/ civil partnership.
If the applicant is successful the court has the power to make various orders for example, periodical payments, the transfer of property and lump sum payments.
Again, using a Solicitor to draft a will reduces the risk of a claim under the Act.
Detailed file notes / other forms of correspondence clearly set out the wishes of the Deceased and the Court will take these into consideration.
We have offices in the local area, Bingley, Bradford and Ilkley.
If you would like any advice on wills, estate planning or probate issues, please do get in touch with our friendly and professional team to discuss further.
Bingley office – 01274 723858
Bradford office – 01274 735511
Ilkley office – 01943 601173