Inheritance disputes can often arise over the validity of a Will, the effect a Will has on family and friends and in cases where no Will has been made at all.
Girlings has extensive experience of Contentious Probate acting for family members, executors and trustees in a wide variety of cases. Andrew Watson is a member of ACTAPs (The Association of Contested Probate Experts).
Such disputes can have the ability to destroy relationships within the family for a lifetime. When contesting a Will we always seek to achieve the most effective solution quickly and fairly in order that relationships, where damaged, have the best prospect of recovery and that the expense to the estate may be kept to a minimum. Girlings can also advise on intestacy cases following a person’s death where there is no Will
Andrew Watson is a member of ACTAPs (The Association of Contested Probate Experts).
The number of people seeking to contest a Will is on the increase and there have recently been some high profile inheritance dispute cases. In addition, issues of fraud and dishonesty on the part of attorneys and sometimes executors have become a major issue in recent years.
Girlings Solicitors has a reputation for offering a professional, sympathetic and supportive service. With offices in Ashford, Canterbury and Herne Bay. we work with a wide range of clients that include:
- The beneficary/benficiaries
- Executors/administrators of estates
- Charities that are involved in disputes
How to contest a Will
The most common grounds for contesting a Will are listed in the following section. If you think you have a claim you must act promptly. Claims in respect of the provisions of an otherwise valid Will are time limited so early advice is essential. If the validity of the Will is being disputed, we will usually advise that a ‘caveat’ is lodged at the Probate Registry. This stops personal representatives obtaining authority (Grant of Probate) to proceed with the administration.
It is always better to instruct a lawyer who specialises in inheritance claims/Will disputes and one of our specialist probate solicitors would be happy to have an initial discussion with you.
Grounds for Contesting a Will
Listed below are the most common grounds for contesting a Will. For more information see the Frequently Asked Questions on the right.
This can be a complex area. If a person thinks they should have been left a share of someone’s estate they can make a claim if they qualify as an eligible claimant. For example under the Inheritance Act a claim can be made against an estate on the basis of a lack of reasonable financial provision for members of the deceased’s family or in certain cases, other dependent person / persons as well.
Lack of testamentary capacity
When a person makes a Will they must be of sound mind for it to be a valid Will. Any of the reasons below could be the starting point for a challenge based on a lack of testamentary capacity:
- The testator was not aware that they were making a Will and the effect of that Will
- They did not know the nature and value of their estate
- They did not understand the consequences of including and excluding certain people under their Will
- They were suffering from a ‘disorder of mind’ which might have influenced their views.
An invalid Will - Lack of valid execution:
A valid Will must meet one or more of the requirements listed below. In addition there are strict rules about who can witness a Will. Legally a Will is deemed to have been validly executed unless there is evidence or any doubts over any of the requirements below:
- The Will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
- It must appear that the testator intended by their signature to give effect to the Will.
- The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
- Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
Lack of knowledge and approval
The testator must know that they are signing a Will and approve of its contents. To contest a Will on the basis of lack of knowledge and approval it must be shown that the testator was not aware of the content of the Will or that there were suspicious circumstances. This ground can be used even if the Will appears to be validly executed and the testator had mental capacity.
Actual undue influence must be demonstrated to prove that a person was unduly influenced, coerced or under duress when making aWill.
Fraudulent wills and forged wills
If you believe forgery or fraud has taken place you can contest a Will.
Poorly written Wills
A construction claim may be brought if the words in a Will are unclear or ambiguous. A Will may be rectified where it fails to carry out the testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the testator’s instructions. When a Will is negligently drafted this is often the first port of call before making a claim for professional negligence.
Conditional Fee Agreement (CFA)
For some matters it may be appropriate to use a Conditional Fee Agreement and we will discuss this with you.
Where we provide representation under a Conditional Fee Agreement, you will be required to fund our success fee from your damages upon the successful conclusion of your claim. Our success fee is calculated as a percentage uplift of our normal (“base”) chargeable costs and will typically be within the range of 50% – 70% but cannot exceed 100%. The precise terms of the CFA would be negotiated and agreed with you prior to commencement. You will also be required to pay any insurance premium you have elected to take out from your damages upon the successful conclusion of your claim.
If the claim fails, you would have to pay disbursements (the money which we have to pay to other people for example expert reports, Court fees, Counsel etc.) but we can arrange legal expenses insurance for you which would cover these disbursements so there would then be nothing at all to pay if the claim should fail.
If you terminate the Conditional Fee Agreement against our advice, we then have the right to decide whether 1) you must pay our basic charges and our expenses and disbursements including barristers’ fees (but not the success fee) or 2) pay our basic charges, and our expenses and disbursements including barristers’ fees and success fees if you go on to win your claim for damages.
If a finding of fundamental dishonesty is found your claim would be struck out and you would be required to pay our basic charges, and our expenses and disbursements as well as the basic charges, and expenses and disbursements of your opponent.
The Conditional Fee Agreement automatically ends if you die before your claim for damages is concluded. We will be entitled to recover our basic charges up to the date of your death from your estate. If your personal representatives wish to continue your claim for damages, we may offer them a new conditional fee agreement, as long as they agree to pay the success fee on our basic charges from the beginning of the agreement with you.
We Work With You
Whatever your personal circumstances, taking the decision to contest a Will can be stressful and emotionally difficult but it is important to take legal advice as soon as possible. For further advice on contesting a will, contact one of our specialist contentious probate solicitors today or call into your local office.
Our probate solicitors can also advise you on other related matters such as grant of probate and Inheritance Tax.