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Challenging Wills or Inheritance

When someone has made a Will setting how they intend their assets to be divided, there are limited circumstances in which their wishes can be challenged or altered.

Sometimes, the circumstances when the will was drafted are suspicious, there may be questions about whether the deceased had capacity to make a will, or perhaps there is a concern that they were influenced by someone or didn’t understand what they were doing. In those circumstances, whether you are the executor or a beneficiary you may need to seek expert advice.

A beneficiary who did not receive sufficient maintenance from the estate then they may be entitled to make a claim for a larger share under the provisions of the Inheritance (Provision for Family and Dependents) Act 1975. This type of claim may arise either because the deceased did not make sufficient provision in their will or because they did not make a will at all and died intestate. This type of claim is frequently made by a long term partner or cohabitee who is not entitled to any share of the estate at all under the intestacy rules.

A claim under the inheritance act needs to be made within 6 months of the date that the Grant of Probate was issued. If you believe that a will is invalid you can take steps to prevent anyone obtaining the Grant of Probate, by entering a caveat or a standing search at the probate registry.

Whether you are a disappointed beneficiary who believes who have not received your rightful share of an estate, or a beneficiary or executor of an estate against which a claim has been threatened, you need to seek specialist advice as soon as possible to ensure that any relevant documents and evidence is preserved.

It may be possible to resolve the claim against the estate in a manner that mitigates Inheritance Tax liabilities and maximises the assets available for the beneficiaries.

As executor you need to know how to handle the claim, in most instances, the executors do not take an active role in proceedings passing the issue to the residuary beneficiaries and simply taking a guiding role.

The sooner that everyone has taken appropriate advice the sooner they can start working towards reaching a resolution.

Steps can be taken to ensure that necessary steps are taken within specified timeframes.

When was the Grant of Probate obtained? If it hasn’t been obtained is it appropriate to enter a standing search or a caveat at the probate registry. When do proceedings need to be issued to ensure that the right to claim is preserved.

What is the size and nature of the estate? Have the executors prepared draft estate accounts?

Who are the beneficiaries? If the deceased died intestate have all relevant beneficiaries been identified and contacted.

If the claim relates to the validity of the will, what evidence is available about the circumstances in which the will was drafted? Has anyone requested a copy of the will file from the drafting solicitors?

What evidence is there to support a claim that the deceased did not have testamentary capacity? Have the medical records been obtained?

The types of claim that arise from a probate matter are varied and we can assist with any of the following:

Applying to the probate registry to enter a caveat or standing search.
A review of the documents and circumstances surrounding the drafting of the will in order to provide a detailed letter of advice regarding the potential challenges to validity of the will.
A review of the documents and circumstances surrounding the will or intestacy to provide a detailed letter of advice to confirm whether it is possible to claim under the Inheritance (Provision for Family and Dependents) Act.
Obtaining documents and evidence from the solicitor that drafted the will.
Drafting a Larke v Nugus letter.
Gathering all relevant documents – medical records, solicitor records, correspondence, financial papers.
Helping to identify and contact all beneficiaries.
Appointing enquiry agents to search for beneficiaries or to review the background to a person making a claim.
Exchanging correspondence to try to resolve the dispute.
Preparing and attending mediation or other alternative dispute resolution to try to resolve the dispute.
Issuing court proceedings.
Defending court proceedings.
Assisting with settlement negotiations.
Without prejudice correspondence.
Preparing witness statements and other documentary evidence to support your claim or to dispute a claim against the estate.
Preparing settlement documents.

FAQ

Costs

For more information contact rb@startpointlaw.co.uk or telephone 01548 288008