Probate disputes

Frequently Asked Questions

Whatever your claim, the starting point is always to talk to or write to the other party to the potential dispute. If you are still unable to reach an agreement or are unsure of your rights, you should seek legal assistance.

At Start Point Law we will listen to you, to the facts that are relevant to your dispute and we will suggest documents and evidence that you will need to collate so that we can advise whether you have a claim that has a reasonable prospect of success.

Your ultimate remedy will be to issue court proceedings however, before doing so, the parties are encouraged to follow a pre-action protocol. In contentious probate matters the parties are encouraged to follow the pre-action protocol issued by the Association of Contentious Trust and Probate Solicitors (ACTAPS).

Further evidence may need to be gathered, and letters can be written to relevant parties. A letter called a Larke v Nugus letter is often sent to the solicitor or professional that was instructed to draft the Will requesting specific details around the drafting of the Will and a copy of the Will file. Often the deceased’s medical notes will be relevant and can be obtained from the doctor. At this stage the parties are encouraged to work together to collect this evidence.

A letter of claim is the next step, setting out in detail the legal basis for your claim, the facts and evidence that you will rely on to support your claim and the remedy that you are seeking. The other party should be given a reasonable period of time to consider the letter and collate evidence required to respond. What is a reasonable period of time will depend on the particular circumstances.

At every stage the parties are encouraged to consider and if possible try to use alternative dispute resolution such as mediation to resolve the dispute.

If the response is unsatisfactory, and mediation is not possible or refused, court proceedings will be issued. You will pay a court fee and your claim will be set out in formal court documents. The claim form and particulars of claim will be served on the defendant(s) and they will have a short period (14 to 28 days) to respond.

It is very difficult to estimate how long a contentious probate matter will take to conclude for several reasons.

Often it is necessary to collate evidence from third parties and it is impossible to estimate how long those parties will take to respond to requests for information. This could take between 2 weeks and 4 months.

Once evidence has been gathered the rest of the pre-action protocol must be followed and it takes time for each step to be completed so that the parties have a reasonable period to respond. This will likely take at least 6 months.

Finally when court proceedings are issued the parties will be dependent on the availability of the court for the hearings to take place, it is likely to take at least 12 months to reach the final hearing.

Altogether a contentious probate claim would take more than 18 months to conclude if it goes all the way to a final hearing.

The cost of legal assistance with a claim of this nature will vary depending on several factors, such as how many different parties are involved, how much paperwork is there, how many witnesses and what are the assets in the estate.

At Start Point Law we charge £500 initial fixed fee. The fee will include the following:

An initial meeting with you to discuss your concerns;
Making initial enquiries, if necessary with other parties, to obtain a copy of the Will (if you don’t already have one), identify other potential parties to the claim, and as far as possible, ascertain details of what the assets are in the estate, or identify who is responsible for administering the estate.
A detailed letter of advice which will set out our advice, the likely overall costs of the claim, how likely it is that your claim will succeed and the estimated timescales.

A Will is a document that sets out what a person wants to happen to their assets following their death. After that person dies their assets will be distributed in accordance with their Will, and to ensure that opportunities for fraud are limited there are very strict rules that must be observed to ensure that the Will is valid.

To challenge the validity of the Will the first step would be to contact the relevant parties. The relevant parties to a dispute will be the executors and the beneficiaries to the Will. The beneficiaries are the people who inherit the assets. If it is not possible for all the relevant parties to agree that the Will is valid or not, then it will be necessary to issue court proceedings.

A Will is invalid if any of the following requirements are missing when the instructions for the Will are given and when the Will is executed:

The deceased does not have testamentary capacity.
The deceased must understand what the provisions of the Will mean.
The deceased is not suffering from undue influence or coercion.
The execution of the Will complies with formalities.

The person making a Will must have testamentary capacity which is also sometimes referred to a requirement to be of sound mind. This means that they must not be suffering from any illness or condition that may affect their ability to understand their decisions. They must understand what the Will says and they must understand the extent of their assets.

One of the most well known conditions that can affect testamentary capacity is Alzheimer’s or any other form of dementia. However, a diagnosis of dementia does not necessarily mean that an individual cannot make a valid Will. Dementia is a progressive disease and during the early stages a person suffering from dementia may still have capacity.

There are many other medical conditions that may affect capacity and capacity can also be lacking due to medication or substance abuse.

It is difficult to prove testamentary capacity or lack of it after a person has died, if there is any concern that the validity of the Will may be challenged then a doctor or suitably qualified professional should be instructed to carry out an assessment to confirm that the individual is of sound mind. A report from a medical professional confirming capacity at the time of execution of the Will, is difficult to challenge.

When making a Will the person making it (the testator) must understand that he or she is making a Will and that their assets will be distributed in accordance with the Will after they have died. Further, to make a valid Will a testator must know what they own, so far as they must be able to appreciate what possessions are going to be included in their estate and have an approximate idea of the value of those assets. Finally, they should also be aware of any potential claims that may be made against their estate.

After the testator has died, it is difficult to establish that they didn’t understand these things. A court will always assume that they did understand unless there is evidence that raises doubt.

Undue influence and coercion are different ways to refer to a situation where a person is unable to exercise freedom of choice because they are being persuaded to do something else by a third party.

In the context of making a Will the third party will persuade them to leave assets to someone who would otherwise not have received a share of their estate, or may persuade them to leave a larger share to that person, or to leave someone out of their Will altogether. The person who is exerting undue influence or coercion need not be the person who benefits, although in most cases they will be the recipient of the additional share of the assets.

Evidence of undue influence can include a third party making the appointments for the Will to be drafted, that same person taking the deceased to the appointments and staying in the same room when the instructions for the Will are given.

Another example may be a third party giving the instructions, perhaps over the telephone, or even by writing a letter, email or document which purports to set out what the Will should say.

A person making a Will must be free from any undue influence or coercion by third parties. If there is evidence that the testator was coerced or forced to make the Will in certain terms the Will may be invalid.

The Will must comply with formalities – it must be in writing, it must be signed by the testator in the presence of two independent witnesses and then they must sign the Will as witnesses in the presence of the testator.

If a person’s last Will is ruled to be invalid for any of these reasons, an earlier valid Will takes effect, or if there is no previous Will the intestacy rules will apply. Successfully challenging the validity of a Will does not mean that anyone else has any right to say how the deceased’s assets will be distributed.

If you believe that a Will may not be valid you should seek legal advice from a specialist solicitor.

The cost of legal assistance with a claim of this nature will vary depending on several factors, such as how many different parties are involved, how much paperwork there is, how many witnesses are involved and what assets are in the estate.

At Start Point Law we charge £500 initial fixed fee. The fee includes the following:

An initial meeting with you to discuss your concerns;
Making initial enquiries if necessary with other parties, to obtain a copy of the Will (if you don’t already have one), identify other potential parties to the claim, and as far as possible, ascertain details of what the assets are in the estate, or identify who is responsible for administering the estate.
Preparing a detailed letter of advice which will set out our advice, the likely overall costs of the claim, how likely it is that your claim will succeed and the estimated timescales.

If it is proved that a person’s Will is invalid then the deceased’s estate will be distributed in accordance with the terms of any earlier valid Will. If the deceased had not made an earlier valid Will then the deceased’s assets will be distributed in accordance with the intestacy rules. Before embarking on a challenge to the validity of a Will it is very important to consider whether there is an earlier Will and if so, what the provisions of that earlier Will are.

If you have been appointed as an executor in a Will then you are probably not expecting to have to deal with a claim against the estate. If a claim is threatened or court proceedings issued, you should seek legal advice to ensure that you observe your duties correctly. The most important duty is to preserve the assets.

An executor must provide full details of the assets and any draft estate accounts to all parties, and it is extremely important to preserve the assets until the dispute has been resolved. This means that other than debts, no other payments should be made from the estate monies.

Whilst the executor or personal representatives of the deceased’s estate will be included as a Defendant to the claim, they do not usually take an active role in the dispute, but they should still reply to any orders issued by the court.

An executor’s legal costs will be paid from the estate provided that those costs are reasonable.

If your partner or husband/wife or parent has died you may expect to inherit a large share or all of their assets. You may discover that they have left their assets to a new boyfriend or step children, or perhaps they didn’t have a Will at all and you are not going to inherit as much as you expected. Perhaps they have left a far larger share (or everything) to someone else or even to charity. If any of these situations apply, you may have a legal claim to a larger share.

Do you have any concern about any of the circumstances around drafting the Will? Is it possible that the deceased could have been persuaded to leave all their money to someone because they were under pressure to do so?

Did they understand what they were doing or do you think that they may have been suffering from some form of mental illness at the time that they gave instructions for their Will?

Is there any other circumstance surrounding the drafting of their Will that concerns you?

If any of the above circumstances apply, then it may be possible to challenge the validity of the Will. If you successfully challenge the validity of the Will then the distribution of their estate will take place under the provisions of any earlier valid Will or under the intestacy rules. Please contact us to discuss further if you think that this situation may apply to you.

There is a law often referred to as the Inheritance Act that may give you a claim for a larger share of the estate. This statute may help you so long as you satisfy specific criteria.

Are you in the following list of relatives who are entitled to make a claim?

Husband, wife or civil partner;
Child of the deceased (including adopted children);
Someone that lived in the household with the deceased as husband or wife or civil partner for at least 2 years prior to their date of death.

If you don’t fall into any of the above categories, you can only claim if you can prove that the deceased provided financial assistance to you.

If you can establish a right to make a claim then the court will conduct a balancing exercise considering all relevant facts to decide whether or not it should alter the way that the deceased intended his or her assets to be divided.

All the people that are beneficiaries under the Will are joined as parties to the claim and all will be required to produce detailed financial information, a statement setting out details of their relationship to the deceased and any statements or documents from third parties that may assist the court in understanding the nature of the relationship between the deceased and all relevant parties.

At Start Point Law we charge £500 initial fixed fee. The fee will cover the following:

An initial meeting with you to discuss your concerns;
Making initial enquiries if necessary with other parties, to obtain a copy of the Will, identify other potential parties to the claim, and as far as possible, ascertain details of what the assets are in the estate, or identify who is responsible for administering the estate.
A detailed letter of advice which will set out our advice, the likely overall costs of the claim, how likely it is that your claim will succeed and the estimated timescales.