The term Contentious Probate is used with reference to the decision of an individual to challenge the will of another, normally a family member, albeit not limited to family members. The decision to challenge a will may arise out of several situations but broadly speaking; to challenge the validly of a will or, alternatively, to challenge the distribution of assets within the deceased’s estate.
CHALLENGING THE VALIDY OF A WILL
This situation arises when one questions the basis upon which the will was made for various reasons detailed below.
This article provides a simple explanation of the legal requirements for executing a valid will as well as the ways in which a will can be challenged.
INGREDIENTS FOR A VALID WILL
For a will to be valid, it must comply with the provisions specified in s9 of the Wills Act 1837 in that that it MUST be:
- 1. In writing;
- 2. Signed by the person making the will;
- 3. Witnessed by two individuals, either present during the testator’s signing or upon the testator informing them that the signature on the document is indeed that of the testator. Note also that the witnesses cannot also be a beneficiary under the terms of the will;
- 4. Signed by the two witnesses in the knowledge that the testator has signed the will with the full knowledge and intention of making a will.
GROUNDS FOR CONTESTING A WILL.
A will may be contested on the following grounds:
- 1. The testator’s lack of capacity i.e. the testator did not understand the document being signed and its implication due to a lack of mental capacity.
- 2. The testator not being aware of the contents of or the (potential) implications of the terms within the will. Such circumstances may arise where additional precautions are required e.g. blind testators would need to have the will read to them in front of witnesses. Another example (irrespective of mental and/or physical impairment) is the decision in the case Burgess v Hawes which deemed the will to be invalid due to the significant involvement a beneficiary had played in the preparation of the will.
- 3. The testator being subjected to undue influence when preparing the will, i.e. the testator was pressurised into bequeathing certain assets/monies to someone they would not normally consider allowing to benefit without that undue influence.
- 4. The failure to execute a will appropriately thus, rendering the document legally unenforceable, i.e. two independent witnesses are required to confirm the testator’s signature.
- 5. There is reason to believe the will is a fraudulent document, e.g. not prepared or signed by the testator.
LACK OF CAPACITY
The legal principle in relation to capacity was established in the case of Banks v Goodfellow (1870). The provisions have been upheld in cases as recent as 2014 as the applicable test to the execution of a will. The testator must:
- 1. Be aware that they are making a will as well as having full knowledge and approval of its contents;
- 2. Understand the value of the assets and belongings within their estate;
- 3. Understand the implications should they wish to exclude some individuals from their will (such as family members);
- 4. Not be suffering from a mental illness which may inhibit their true intentions.
To be successful in any challenge of the will under this category, the claimant would need to demonstrate that the testator had been suffering from a mental incapacity at the time the will was executed, to the extent the testator did not have an understanding of the document being signed. In seeking to rely on a lack of capacity to challenge a will, if the potential claimant can show In the event substantial concerns as to the testator’s capacity at the relevant time, the burden of proof would then be placed upon the person seeking to rely upon the validity of the will to rebut the claim.
A testator must also be aware of the implications of omitting certain people from their will. Notably, the potential for claims under the Inheritance (Provision for Family and Dependants) Act 1975, which enables family members and/or individuals, the deceased may have treated as family members, to claim an equitable share of the estate.
Undue influence, duress and/or coercion may arise in several ways and range from physical violence and verbal threats to relaying false information to the testator, upon which the testator relies in making the will. Further examples are taking advantage of an illness or circumstance where the testator may be a vulnerable person.
The key question to address when pursuing a contested probate claim on the ground of undue influence is to assess the likelihood that the testator/deceased would have expressed their wishes as they did, had the undue influence/coercion not occurred.
CHALLENGING THE DISTRIBUTION OF ASSETS OF A WILL UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Under this legislation, one may challenge the distribution of assets as detailed min the will of the deceased if one can show they should have benefitted from the estate of the deceased but did not do so either at all, or to the extent they feel they should have been entitled for one of the reasons under the Act.
A claim under the Act can be made by to challenge the distribution of the assets as contained in the will limited to certain categories of people:
- 1. The spouse or civil partner of the deceased;
- 2. The previous spouse of civil partner of the deceased, providing they have not remarried or entered another civil partnership;
- 3. Someone who was living with the deceased at least 2 years prior to their death;
- 4. A chid or a person who was treated as a child of the deceased;
- 5. Anyone who received maintenance from the deceased prior to their death.
The court will then exercise its discretion, when considering the specific circumstances and may grant a share of the estate which the court finds to be just and equitable.
In these circumstances, an applicant may apply for reasonable financial provision from the estate of the deceased.
In the case of a spouse or civil partner, the court may award a sum it deems reasonable in accordance with the spouse/civil partner’s/applicant’s equitable entitlement from the marriage as opposed to being solely based on assessment of the applicant’s financial position and their maintenance requirements. Applicants under the other categories listed above are usually assessed in accordance with their maintenance requirements alone, although, in the absence of a definition for ‘maintenance’ under the Act, the court frequently applies its own standards and considerations in accordance with the circumstances of the case.
The circumstances the courts will consider when assessing the appropriate maintenance sum the applicant may be entitled to recover are:
- 1. The applicant’s financial position and needs at the relevant time as well as likely financial liabilities which may arise in the foreseeable future;
- 2. the financial position of any other applicants claiming under the act as well as financial implications likely to arise in the foreseeable future;
- 3. the financial position and needs of any beneficiaries of the deceased as well as those likely to arise in the foreseeable future;
- 4. any obligatory needs the deceased may owe to beneficiaries of the estate and/or other applicants;
- 5. the value and scope of the deceased’s net estate;
- 6. whether other applicants or beneficiaries of the estate are suffering from a physical or mental disability;
- 7. considerations of any other matter the court deems relevant to the application.
A claim under the Inheritance Act must be brought no later than 6 months from the date the grant of probate (or letters of representation if the deceased did not leave a will) is issued. Similarly, a ratification claim (where the will is void due to a clerical error) must also be brought within 6 months of the grant of probate. If the grant has not been issued however, a claimant may file a caveat with the probate registry which would prohibit the grant being issued whilst proceedings are ongoing. A caveat would need to be renewed every 6 months if required. A beneficiary seeking to make a claim against the will must do so within 12 years from the date of the death. Although, the limitation period to is 6 years in the case of assets held in trust as well as concerns regarding a trustee’s breach of duty.
There is no legal time limit to comply with when seeking to establish the will is a fraudulent or forged document. This principle in this circumstance derives from the notion that the, should it transpire that the will was forged or fraudulent it would not be a legally enforceable document. Hence, a statutory limitation period for claims concerning the document could not be applied. Naturally, it is advisable to pursue a claim as soon as possible for the process to progress efficiently. Evidence may not be readily available after a significant amount of time has passed and the process need not be hindered due to circumstances where the estate has already been distributed when a claim is made.
If you feel you have a potential claim against the estate of a family member, please contact Mr. Robert North at firstname.lastname@example.org