Whilst a will is often the last thing that anyone wants to have to think about when a loved one passes away if there is a dispute over a will then it is important to ensure you take specialist advice from experienced professionals who can assist and guide you through the complexity associated with contentious probate claims.
Disputes over wills and probate
Our lawyers are familiar with all contentious probate including:
- Challenging a will based on incorrect execution
- Challenging a will based on lack of testamentary capacity
- Challenging a will based on a lack of want of knowledge and approval
- Challenging a will on the basis of undue influence
- Challenging an executor
- Inheritance Act disputes
- Fraudulent wills
If you wish to challenge a will and are seeking advice on whether you can make a probate dispute claim then please get in touch for an initial, no obligation discussion.
Whilst it is possible to prepare a will yourself, there are some strict legal formalities that need to be complied with in order for a will to be valid. Legal advice is always therefore recommended when compiling a will. Our wealth protection team can offer further advice if required.
The formalities in relation to the execution of a will are set out in Section 9 of the Wills Act 1837. In order for a will be to valid, it must be:
- In writing;
- Signed by the person making the will (the testator) or by another person in their presence and by their direction; and
- Signed in the presence of two independent witnesses (present at the same time) who must also attest and sign the will.
Failure to comply with these formalities could result in a will being deemed invalid, in which event the estate would then be distributed in accordance with the intestacy rules. This could mean that an estate would not be distributed in the way in which the testator intends.
As well as the formalities set out under the Wills Act it is also important to ensure that the testator has the necessary testamentary capacity to execute a will. Lack of testamentary capacity will deem the will invalid. Testamentary capacity is the legal term used to describe a testator’s legal and mental ability to make and execute or alter a will. It is an important factor in connection with the preparation of all wills but is of particular importance when the testator is elderly, seriously ill or suffers from a mental disability.
The court first considered the position regarding testamentary capacity nearly 150 years ago in the case of Banks v Goodfellow . This case set out the test for consideration as to whether a testator has testamentary capacity, often called the “golden rule”.
The following provisions apply when considering whether the testator has testamentary capacity:
- The testator must understand the nature of the will and its effect.
- The testator must have some knowledge of the extent of the property of which they are disposing.
- The testator must be able to comprehend and appreciate the claims to which he ought to give effect; and
- The testator must be free of any disorder of the mind which prevents his sense of right or the exercise of his natural faculties in disposing of his property.
Evidence from medical practitioners may be required in order to assess whether a testator has testamentary capacity.
If the testator is later found to have lacked testamentary capacity at the time of execution of the will then it will be held to be invalid. Any previous will would instead be entered into probate or, if there is no previous will, then the rules of intestacy would apply.
It has been common practice for many years to challenge the validity of wills based upon lack of testamentary capacity but doing so based upon a lack of want of knowledge and approval is now becoming more commonplace. It is also not unusual for executors and/or beneficiaries to face challenges on both aspects.
Where a will has been correctly executed and the testator had the necessary testamentary capacity, knowledge and approval will be presumed. If, however, a will has been executed in suspicious circumstances, it will be necessary to show that the testator understood and approved the will.
What amounts to suspicious circumstances will be a question of fact in each case. An example of this may be a parent leaving his entire estate to his lodger in preference over his children, in circumstances where he is not estranged from them and where previous will(s) executed by him had provided for his estate to be left to his children.
Challenging a will on the basis of undue influence is one of the most difficult challenges to sustain in relation to probate disputes. In order to prove undue influence, it is necessary to show that there was actual coercion or pressure sufficient to overpower the volition and judgment of the testator. An example of a successful challenge of a will on the basis of undue influence is Schrader v Schrader .
In this case, the deceased originally left her estate to her two sons, Nick and Bill in equal shares. Later she executed a new will leaving her house, the main asset in the estate, to Nick alone. Upon her death, Bill sought to challenge the validity of the will on the basis of undue influence. The court was persuaded that undue influence had taken place as a result of various factors, including Nick’s involvement in the preparation of the later will, his forceful personality, his view that he had not been treated equally to his brother, the deceased’s vulnerability and her reliance on Nick as well as the lack of any other identifiable reason for the change in her will. Nick had also waited six months following his mother’s death to disclose the original will and was found to have given a false reason as to why the later will had not been prepared by the family’s usual solicitors.
It is not that unusual for testators to appoint executors without having sought confirmation from them that they are willing to be an executor. In these circumstances, it is possible for an executor to refuse to act (to renounce the appointment). However, in practice, it is often the case that executors will accept the appointment but then not take steps to distribute or administer the estate.
We recently acted for the sister in connection with a family dispute with her two brothers regarding the administration of their late father’s estate. All three siblings had been appointed executors under their father’s will but, for convenience, had agreed that the elder brother should take out the grant of probate in his sole name with “powers reserved to the other executors”.
Some ten years later, the brother had not taken any steps to finalise administration of his late father’s estate including, in particular, the sale of the former family home. Various reasons were given by the brother (who was also supported by the other brother) for this including the fact that attempts were being made to sell the property to developers but no evidence to support this contention could be provided by him.
In the circumstances, after attempts to progress matters by way of correspondence failed to bring any meaningful progress, the sister instructed us to challenge the executor of the will and make an application to remove her brother as executor. A High Court application followed and he was eventually removed, an alternative executor appointed (an independent solicitor) and the completion of the administration of the estate was concluded within a matter of months including the sale of the property.
English law provides that, in principle, testators can leave their estate to whomever they chose. However, the Inheritance Act (Provision for Family and Dependants) Act 1975 (“the Act”) allows certain categories of people to claim against a deceased’s estate on the grounds that the will (or intestacy rules if there is no will) does not make reasonable financial provision for them.
Persons who can apply under the Act include spouses, children (including adult children in certain circumstances), civil partners, cohabitees (if they have been residing with the deceased for a period of at least two years immediately preceding the date of their death) and persons who were being maintained by the deceased immediately prior to their death.
Claims under the Act must be brought quickly – within 6 months of the date of the grant of probate. It is therefore important to obtain specialist advice sooner rather than later.
Whilst the court retains a wide discretion as to the scope of the orders to be made in successful claims such that it can be difficult to predict with accuracy the outcome of any claim, at Boyes Turner our lawyers have considerable experience of dealing with these type of claims and negotiating settlements without the need for any final hearing usually at mediation.
Claims seeking to challenge wills on the basis of fraud are typically made in respect of an allegation that the testator’s signature has been forged or subsequent amendments have been fraudulently made by someone other than the testator. However, claims can be very wide in nature including elaborate attempts to prepare a will on behalf of a testator using false identification documents.
Any allegation involving fraudulent signatures or handwriting of the testator will necessitate the preparation of a forensic handwriting expert’s report.
What shall I do next?
If you would like information and advice on how to enter a probate dispute then please get in touch with our specialist lawyers for an initial no-obligation discussion on the merits of your case.