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Understanding the Basics: What Does it Mean to Contest a Will?

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Andrew Gerard Lucas

Principal Solicitor

Introduction

When a loved one passes away, the emotional and financial implications can be overwhelming. Among the many tasks that must be addressed is the execution of the deceased’s will. However, sometimes the content of the will can spark disputes, leading to a legal process known as contesting the will. In this blog, we’ll dive into what it means to contest a will, why someone might do so, the legal grounds for contesting, the process involved, and the crucial role of a solicitor in this process.

What is a Will Contest?

A will contest is a formal objection raised against the validity of a will. This objection can be made by anyone who believes that the will does not reflect the true intentions of the deceased. Contesting a will should be taken seriously, it involves a complex legal process that can be emotionally and financially taxing.

Why Contest a Will?

There are several reasons why someone might contest a will, including:

  1. Belief of Fraud or Forgery: If there is suspicion that the will has been tampered with or forged, it can be contested.
  2. Lack of Testamentary Capacity: This means that the deceased did not have the mental capacity to understand the implications of creating a will at the time it was made.
  3. Undue Influence: If someone close to the deceased applied undue pressure or influence, leading them to create or alter a will in a way that does not reflect their true wishes.
  4. Incorrect Execution: Wills must be executed according to specific legal requirements. If these requirements were not met, the will could be deemed invalid.
  5. Revocation: If there is evidence that the will was revoked by the deceased, either through a subsequent will or another legally recognised method.

The Process of Contesting a Will

Contesting a will involves several steps, each requiring careful navigation through legal procedures:

1. Filing a Petition

The first step is to file a petition with the probate court in the jurisdiction where the will was filed. This petition will outline the grounds on which the will is being contested.

2. Discovery

During the discovery phase, both sides gather evidence to support their claims. This can include witness statements, medical records, and other documentation that supports the challenge.

3. Mediation

Many courts require parties to attempt mediation before proceeding to trial. Mediation is a less formal process where a neutral third party helps facilitate a resolution between the disputing parties.

4. Trial

If mediation fails, the case will go to trial. Both sides will present their evidence and arguments, and a judge (and sometimes a jury) will decide regarding the validity of the will.

5. Appeal

If the outcome of the trial is unsatisfactory to either party, they may have the option to appeal the decision. This involves taking the case to a higher court for review.

The Role and Importance of a Solicitor in Contesting a Will

Contesting a will is a complex legal process that requires expert guidance and support. A solicitor plays a crucial role in this process, ensuring that the contest is handled professionally and effectively.

1. Expert Legal Advice

A solicitor provides invaluable legal advice, helping you understand the grounds for contesting a will and assessing the strength of your case. They can explain the legal terms and procedural requirements, ensuring you are well-informed at every step.

2. Evidence Gathering

Collecting evidence to support your claim is a critical part of contesting a will. A solicitor has the expertise to identify and gather relevant evidence, including medical records, witness statements, and financial documents. They know what is admissible in court and how to present it effectively.

3. Navigating Legal Procedures

The legal process for contesting a will involves numerous procedures and deadlines. A solicitor ensures that all paperwork is filed correctly and on time, avoiding procedural errors that could jeopardise your case. They also represent you in court, presenting arguments and evidence on your behalf.

4. Mediation and Negotiation

Before a case goes to trial, mediation is often required. A solicitor can represent your interests during mediation, negotiating settlements that align with your goals. Their negotiation skills can help resolve disputes amicably, saving time and reducing stress.

5. Emotional Support and Objectivity

Contesting a will can be emotionally taxing, particularly when family dynamics are involved. A solicitor provides objective support, helping you make rational decisions during an emotional time. Their detachment allows them to focus on the legal aspects, while you concentrate on your personal well-being.

6. Appeals Process

If the initial trial does not go in your favour, a solicitor can guide you through the appeals process. They will assess the trial’s outcome, identify grounds for appeal, and navigate the higher court’s procedures.

Challenges and Considerations

Contesting a will is not only legally complex but also emotionally charged. It often involves close family members and can lead to lasting rifts. Here are a few considerations:

  • Time and Cost: The process can be lengthy and expensive, requiring significant legal fees and time investments.
  • Burden of Proof: The person contesting the will has the burden of proving their claims. This can be difficult, especially in cases of undue influence or testamentary capacity.
  • Emotional Toll: Family dynamics can be severely affected, leading to long-term emotional distress.

Conclusion

Contesting a will is a significant legal action that requires careful consideration and a thorough understanding of the grounds and process involved. Whether you are considering contesting a will or are facing a will contest from another party, it is crucial to seek legal advice from an experienced solicitor. This will help ensure that your rights are protected and that the true intentions of the deceased are honoured.

Understanding the basics of what it means to contest a will can empower you to make informed decisions during a challenging time. It is a path that should be navigated with caution, respect for the law, and sensitivity to family dynamics. With the guidance of a knowledgeable solicitor, you can approach the process with confidence and clarity.

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Andrew Gerard Lucas

Principal Solicitor

Frequently asked questions.

Disputes over wills can arise in several circumstances, including:

  • Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.

 

  • Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.

 

  • Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.

 

  • Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.

 

Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.

As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.

Here are some examples of how these disputes can arise:

  • A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
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A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.

 

  • A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.

 

  • A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.

If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.



Types of Trusts

Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include:
Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.

Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.

Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.

Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.

Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.

Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.

Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside.
Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you.
Here are some examples of how different types of trusts can be used:
A bare trust can be used to hold assets for a minor child until they reach the age of majority.

An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.

A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.

An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.

A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.

A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.

A non-resident trust can be used to reduce estate taxes or to protect assets from creditors.
It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust

Inheritance trust disputes can be complex and varied, but some common scenarios include:

  • Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.

 

  • Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.

 

  • Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.

 

  • Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.

 

Here are some specific examples of inheritance trust disputes that have occurred in the UK:

  • In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.

 

  • In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.



  • In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.

 

Other possible disputes include:

  • A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.

 

  • The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.

 

  • The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.

If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.

  • The testator (the person who made the will) did not have the mental capacity to make a will.
  • The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
  • The testator was unduly influenced to make the will.
  • The will was forged or fraudulent.

 

Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about

  • The validity of the will.
  • The interpretation of the will.
  • The appointment or removal of executors.
  • The distribution of the estate assets.
  • The management of the estate.
  • In the UK, contentious probate is dealt with by the High Court.

 

The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.

Here is an example:

Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.

Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.

It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.

If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.

If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.

There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:

  • Why did you not make your claim on time?
  • The strength of your case.
  • Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
  • If the court grants you permission to make a late claim, you will need to file your claim within 28 days.

 

It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.

If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.

Here are some examples of when you might be able to make a late contentious probate claim:

  • You were not aware of the death of the deceased until after the six-month time limit had expired.
  • You were unable to make your claim on time because you were ill or incapacitated.
  • The executor has deliberately concealed information from you about the estate.
  • The executor has committed fraud in the administration of the estate.

 

The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.

The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.

If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.

Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.

If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.

Here are some of the benefits of resolving a will dispute out of court:

  • It is faster and cheaper than going to court.
  • It is less stressful for all involved.
  • It allows you to maintain relationships with other family members and beneficiaries.
  • You have more control over the outcome of the dispute.

 

There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including

  • Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
  • Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
  • Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.

 

If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.

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