Legal disputes involving inheritance are becoming increasingly common. In this article, Silks’ contested probate expert Mark Grimes looks to answer some of the common questions clients ask.
What is contested probate?
Will disputes, commonly known as contested probate, usually involve a relative who has been left out of a will or who has received less than expected. Wills can be challenged on a number of grounds. A common challenge is on the basis that the testator did not have sufficient mental capacity at the time the will was made (for example due to Alzheimer’s). Another method for challenging a will is to argue that reasonable financial provision has not been made.
How long do I have to contest a will?
Claims based on a lack of reasonable financial provision must be made within 6 months of the grant of probate. Beneficiaries have 12 years to make a claim against an estate.
What is Probate?
Probate is the legal process that must be followed after somebody’s death. Executors, who are appointed under a will to collect and distribute a deceased person’s assets must apply to the Probate Registry for a grant of probate. Once probate is granted it allows the Executors to deal with the assets.
Can I stop or object to probate being granted?
Yes. If you wish to challenge a will, it is advisable to apply to the Probate Registry to issue a caveat. A caveat prevents probate being granted and so prevents the assets in the estate from being distributed.
What is reasonable financial provision and who can claim?
The law allows an individual to leave their estate to whoever they wish. The testator can be as mean as they wish in terms of leaving out expectant relatives. There is, however, one major exception in the form of the Inheritance (Provision for Family and Dependants) Act 1975. This act allows certain classes of claimants, such as spouses, children (including step children) and cohabitees to make a claim against an estate if ‘reasonable financial provision’ has not been made for them.
In 2015 the Court of Appeal made a significant award to an only daughter whose mother had left her entire estate to three animal charities. Despite the mother’s clear wish to leave nothing of her £486,000 estate to her estranged daughter, the court made an award of £164,000 to allow the daughter to purchase her council house outright and to provide an income to supplement her benefits. This case has caused something of a frenzy in legal circles and some argue it has led to the floodgates being opened for claims.
What to do next?
Claims against an estate are not always straightforward. If you are thinking of making a claim or if you are having to defend a claim, it is recommended that you seek independent legal advice. There are alternatives to going to court such as mediation and a solicitor who specialises in contested probate is best placed to advise you of your options.
If you are looking for straight-forward advice on contesting a Will please contact Mark Grimes on +441213184707.
Recent Comments