The most common grounds for contesting a will are the validity of the will.
Grounds to challenge the validity of a will:
1. Did he/she intend to make a will?
2. Was the will executed (signed and witnessed) properly?
3. Was it the deceased's most recent will?
4. Did the deceased have legal capacity when he/she made the will?
5. Did the deceased have mental capacity (sound mind, memory and understanding) when he/she made the will?
6. Did the deceased know and approve the contents of their will?
7. Did the deceased make the will of their own free will (no undue influence)?
8. Is there evidence of fraud or forgery?
9. Is there evidence that the will was revoked?
Inheritance (Provision for Family and Dependants) Act 1975
This act makes provisions for those who are connected to the deceased but did not receive "reasonable financial provision" from the estate of the deceased via a will or intestacy.
1. A spouse or civil partner
2. A former spouse / civil partner provided you have not remarried / entered into a new civil partnership
3. A child of the deceased
4. Any person (not being a child of the deceased) who was treated as a 'child of the family' of the deceased
5. Any person being partly or wholly maintained by the deceased
Claims must be made within 6 months of the date of the grant of representation. The court has jurisdiction to allow claims out of time.
A claim can only be made if the deceased died domiciled in England and Wales.
Making and defending proceedings for unprofessional or improper conduct of trustees or executors (and their replacement / removal)
Executors and trustees are commonly referred to as Personal Representatives (PRs).
Where there is friction between PRs or a beneficiary and PR, either party may make an application to court to substitute/remove a PR and/or appoint a judicial trustee.
The PR may not have acted in the best interests of the estate, failed to provide information or acted negligently. Other situations where people may find themselves at odds with a PR include:
1. Disputes about the appropriateness of a particular investment or other administrative act.
2. Cases where a PR has a personal interest such as being a beneficiary under the will or intestacy or being a director or shareholder of a company in which the state is interested.
3. Misuse of power by PR under a power of attorney, where a PR is partisane.g. a friend or adviser to one of the principal beneficiaries.
4. If a PR is dishonest.
5. Where a PR is unreasonable.
Making and defending proceedings against professional will drafters or administrators of trusts and estates (Negligence of will drafters or administrators)
You may be able to contest a will if you feel it has been drafted negligently. Examples of will drafting negligence include where a solicitor:
1. Failed to reflect the deceased's wishes in his/her will to the detriment of a beneficiary.
2. All or part of the will was so poorly drafted that the deceased's wishes could not be construed or there were contradictory clauses.
3. Drafted a will in which some of the legal formalities were not mete.g. as to execution, mental capacity.
4. Took too long to draft a will and the deceased died before it was executed.
Alternatively, it could be a claim by a beneficiary against a professional executor / administrator (which could be a solicitor but may be a bank or other professional organisation) for mishandling the assetse.g. failed to invest them properly.
Claims may be brought by those who have a right to property disposed of under a wille.g. if a property was promised by the deceased to someone who has relied upon that promise.
Claims often arise where family members have made contributions towards the equity on a house purchase. As a consequence of this being a 'family' arrangement, there may be little or no documentation of the intention of the parties. A dispute subsequently arises as to whether the contribution was a gift, a loan or the acquisition of a percentage share in the property purchased. Rising property values mean the distinction is often worth a large amount of money.
Do you have a more general enquiry that doesn’t fit into the other five categories?
1. Do you need some general advice about applying for a grant of probate or letters of administration?
2. Have you been appointed as an executor or administrator but don’t know what to do next?
3. Are you a beneficiary from an estate who is waiting for a gift to be distributed?
4. Are you administering an estate and want to remove a professional executor?
5. Do you have a general query about a person’s will where the person in question is not dead?
6. Do you want an estimate of costs for drafting or reviewing your will?
7. Do you need advice about tax mitigation or protecting your assets?
8. Would you like to speak to a reputable financial advisor about retirement planning?
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