Contesting Probate.

Many people worry that loved ones may fall into dispute after their death. A clear, valid and properly drafted will can reduce the risk of disagreement, but disputes can still arise where family members, dependants or beneficiaries believe something has gone wrong.

Inheritance disputes can be emotionally and financially difficult. They may involve questions about whether a will is valid, whether the deceased understood what they were doing, whether someone applied pressure, whether a dependant has been left without reasonable financial provision, or what should happen where there is no will.

What Happens if There Is No Will?

If someone dies without a valid will, they are said to have died intestate. Their estate is then distributed under the intestacy rules.

The intestacy rules decide who inherits and in what order. They do not necessarily reflect what the deceased would have wanted, and they may not provide for unmarried partners, stepchildren, friends, carers, or others who were financially dependent on the deceased.

Why Making a Will Matters

A will allows a person to decide who should inherit their estate, who should act as executor, who should care for minor children, and how particular assets should be dealt with.

A properly drafted will can be especially important for people with children from previous relationships, unmarried partners, second marriages, business assets, overseas property, estranged relatives, vulnerable beneficiaries or complex family arrangements.

Can a Will Be Challenged?

A will can be challenged in several ways. The right claim will depend on the facts and the legal basis for the dispute.

Common grounds include lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, forgery, failure to comply with formal requirements, or a claim that the will does not make reasonable financial provision for someone entitled to apply.

Valid Execution of a Will

For a will to be valid in England and Wales, it must comply with formal legal requirements. It must usually be in writing, signed by the person making the will, and witnessed by two independent witnesses who are present at the same time.

If the signing or witnessing was not done correctly, the will may be invalid. This can lead to an earlier will being admitted to probate or, if there is no earlier valid will, the intestacy rules applying.

Testamentary Capacity

The person making the will must have had the required mental capacity at the time the will was made. They must broadly understand that they are making a will, the extent of their estate, who might expect to benefit, and the effect of their decisions.

Capacity disputes can arise where the deceased had dementia, serious illness, mental health difficulties, medication effects, confusion, vulnerability or sudden changes in behaviour close to the date of the will.

Knowledge and Approval

Even if the will was signed correctly, there may be a dispute about whether the deceased knew and approved its contents.

This issue may arise where the will was prepared by someone who benefits from it, where the deceased was frail or vulnerable, where there was a major departure from previous wills, or where the terms appear unusual or unexplained.

Undue Influence

Undue influence involves pressure that overbears the free will of the person making the will. It is more than persuasion or family pressure. The question is whether the deceased was forced or coerced into making a will that they did not freely choose.

These claims can be difficult to prove because the main witness, the deceased, is no longer available. Evidence may include isolation, dependency, threats, sudden changes, control by one person, exclusion of family, or suspicious circumstances around the preparation of the will.

Fraud and Forgery

A will may be challenged if there is evidence that it was forged, altered, created dishonestly or signed by someone other than the deceased.

Forgery disputes may require handwriting evidence, witness testimony, document analysis, and careful review of how the will was prepared, stored, and discovered.

Reasonable Financial Provision Claims

Some people can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if the will or intestacy rules do not make reasonable financial provision for them.

People who may be able to apply include spouses, civil partners, former spouses or civil partners who have not remarried or entered a new civil partnership, children, people treated as children of the family, certain cohabitees, and people who were being maintained by the deceased immediately before death.

Unmarried Partners and Cohabitees

Unmarried partners do not automatically inherit under the intestacy rules. This can create serious problems for a couple who have lived together for many years, have never married, and have entered into a civil partnership.

A surviving cohabitee may be able to bring a claim for reasonable financial provision if they meet the legal requirements, but they should take advice quickly because strict time limits can apply.

Time Limits

Time limits in estate disputes can be short. A claim for reasonable financial provision under the 1975 Act is usually subject to a 6-month deadline from the date of the grant of probate or letters of administration.

Other types of claims may have different limitation periods, and practical deadlines can arise much sooner if assets are being distributed. Anyone considering a claim should take advice immediately.

Caveats and Stopping Probate

If there is a genuine dispute about a will or who should apply for probate, it may be possible to enter a caveat. A caveat can stop a grant of probate being issued while the dispute is investigated.

A caveat should not be used to pressure executors or delay an estate without proper grounds. Incorrect use can lead to costly consequences, so legal advice should be taken before entering into one.

Executor Disputes

Disputes can also arise about executors or administrators. Beneficiaries may be concerned about delay, lack of information, failure to collect assets, conflict of interest, poor accounting, unreasonable expenses or improper distribution.

Executors have legal duties to administer the estate properly. In serious cases, the court may be asked to give directions, require accounts or remove and replace an executor.

Intestacy Disputes

Where there is no will, disputes may arise about who is entitled under the intestacy rules, whether someone was legally married or in a civil partnership, whether children or adopted children are entitled, or whether someone was financially dependent on the deceased.

The intestacy rules can produce outcomes that feel unfair, but unfairness alone does not always create a legal claim. Advice is needed to assess whether a claim is available.

Second Families and Blended Families

Inheritance disputes are common where the deceased remarried, had children from different relationships, treated stepchildren as children, or made promises to different family members at different times.

Clear wills, letters of wishes, lifetime planning and proper legal advice can reduce the risk of dispute. However, claims may still arise if someone believes they have been unfairly excluded or left without proper provision.

Evidence in a Will Dispute

Useful evidence may include earlier wills, solicitor files, medical records, care records, correspondence, text messages, financial records, witness statements, diary entries, notes from meetings, and evidence about the deceased's relationships and intentions.

It is important to preserve documents and avoid making allegations without evidence. Estate disputes can become expensive quickly if positions are not properly assessed.

Mediation and Settlement

Many inheritance disputes settle without a full trial. Mediation can be useful where family relationships are strained, but the parties want to avoid the cost, delay and uncertainty of court proceedings.

A settlement may involve payment from the estate, variation of gifts, agreement about property, executor undertakings, disclosure of information or other practical arrangements.

Funding a Claim

Funding options will depend on the type of claim, evidence, the value of the estate, the merits, and the solicitor's terms. Some firms may offer fixed-fee advice, staged fees, deferred payment, conditional fee agreements or other funding options in suitable cases.

When Legal Advice May Be Needed

Legal advice may be needed where there are concerns about the validity of a will, undue influence, capacity, forgery, executor conduct, intestacy, financial provision, cohabitation, second families, missing beneficiaries, suspicious circumstances or urgent distribution of estate assets.

A contentious probate solicitor can advise on caveats, will validity, 1975 Act claims, executor disputes, estate accounts, mediation, court proceedings, settlement strategy, evidence and costs.

Current Position

A will can be challenged only on proper legal grounds, not simply because someone is disappointed with what they received. Where there is no valid will, the intestacy rules decide who inherits.

Anyone considering a claim should act quickly. Estate assets may be distributed, probate may be granted, and some claims have strict time limits, including the usual 6-month deadline for reasonable financial provision claims under the 1975 Act.

Disclaimer

Solicitors.com is not a firm of solicitors and does not provide legal advice. The information on this page is for general guidance only and should not be relied upon as a substitute for advice from a regulated solicitor. Probate law, inheritance law, limitation periods and court procedure can change, and how the law applies will depend on the facts of each case.

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