Contentious Probate

There are many reasons why a person may wish to challenge a will:

  • The document put forward as a will does not in fact constitute a will
  • The formalities for executing a will have not been complied with
  • The lack of mental capacity of the will maker at the time it was made
  • That the person making the will did not know of and approve the contents of the will
  • That the will was made as a result of the undue influence of a third party, (family member or otherwise)
  • That the document being put forward as a will is a forgery

When a will is found to be invalid because of any of the above, the estate of the person who dies will be dealt with under the terms of any previous valid will or the intestacy rules.

Other related claims include:

Proprietory estoppel
This an equitable claim under which a Claimant, usually a disappointed beneficiary, needs to show that the Deceased made him a promise of something, the Claimant relied on that promise and such reliance was to the Claimant’s detriment.

It may be possible to rectify a will where as a result of clerical error or a failure to understand instructions, the will does not reflect the intentions of the person who made the will.

Claims under the Inheritance (Provision for Family & Dependants) Act 1975
In general we are free to leave our assets to whomever we please on death.  However, certain classes of people are entitled to make a claim under this act for financial provision from the estate of a person who has died when they believe that either because of the terms of a will or the rules of intestacy, reasonable financial provision has not been made for him or her.  Any such person may ask the court to consider the circumstances and make an award of financial provision, which changes the result of the will or intestacy.

Claims brought by those who consider that the trustees of an estate are failing to act with reasonable care and skill / failing to act in good faith

A court can make a wide range of orders, including an order for a trustee to repay any personal profit he has wrongly made from an estate or ordering him or her to administer the estate in accordance with the terms of a will.

Useful links

The Association of Contentious Trust and Probate Specialists

Any Questions?

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