Personal Law

Contentious Probate - Contesting a Will

April 30, 2020

There can be a number of reasons to contest the will to contest a will of a dearly departed relative or loved one. This generally starts at the heart of the matter with a dispute as to the construction of the document. There can be a number of reasons why a will or codicil can be declared invalid. This can be due to forgery or if it is not signed in a particular way or if the maker of the will failed to have testamentary capacity (i.e the necessary level of mental capacity to be able to make the will), whether or not that party who made the will was under any undue influence at the time that the instructions for the will were given and whether or not they knew of and approved the contents of the will at the time the document was made, signed and witnessed.


If you have reason to doubt a party’s testamentary capacity

  1. At the time the party made the will there is a specific test which the solicitor who took the instruction for the will or will writer or independent party who witnessed the will needs to know that the party who made the will understood the size and nature of their Estate that they were dealing with (e.g. The total of what their assets were and the estimated value whether or not this was in property or chattels such as antiques or collections).
  2. Did the deceased consider people for whom they should consider making financial provision for in the will such as children spouse or partner (if there is suspicion that a party who has no family contact and who was in a position to influence the party had all of a sudden placed as a major beneficiary where the will has been made just prior to a parties death is often a cause for suspicion).

  3. The nature of the act of making a will and the effect of the will has to be understood by the testator. For instance, the testator must not have suffered from any disorder of the mind or paranoid delusions or had their affections for someone poisoned so the evidence as to how they made their will or codicil is very important.
  4. It should be noted that if someone has ill health this doesn’t automatically invalidate a will but the level to which a party may have understood the legality and the implications of the document that was being made on their behalf can require further investigation and often costs are involved in obtaining medial notes to prove such a situation. Sometimes certain illnesses treatment or medication to deal with a medical complication can potentially effect  testamentary capacity and quite often if someone has severe dementia they may not be able to recall all people who they should take into account when making a will or the value of the estate and it is important that if a professional is taking instruction for the will that they should be aware of the position.


Is there evidence that the departed was coerced or unfairly persuaded to include or leave a party out of the will?

  1. Quite often there is an allegation of undue influence where the person making the will is pressurised or coerced into making the will and making a party a beneficiary or a trustee or executor who has some control over the estate and how it is dealt with. Undue influence can take a number of  forms,  such as an implied threat or pressure which can be less obvious or even unintentional if someone who is relied on for care or support/wellbeing may appear obliged to include that person in their will whether or not they have been advised to or if they may want to do so or not.
  2. To prove that undue influence has taken place is very difficult and clear and exact witness evidence needs to be obtained as proof of the situation. However, if there is reason to doubt whether or not a vulnerable person had undue influence placed against them there is every possibility that the wishes of the testator should have been obtained independent and in an environment free from pressure to make the will, change the will or leave the estate in a particular way.


Did the departed have full knowledge of what they were doing when making the Will?

If a will is signed correctly and if they have testamentary capacity it is assumed that that party knew and approved the contents of the will. Proof of such knowledge and approval is essential for the will to be valid. If there can be an inference that the person making the will did not understand or approve of the contents of the will a Court may require evidence of this.

  1. There are recent changes in civil evidence rules regarding the obtaining of witness statements and this has a clear relevance in relation to the making of a will, for if a testator was blind, illiterate or deaf or had some disability which could affect their understanding or approval of the will, this is something that must be noted and dealt with by the parties who took the instruction for the will.
  2. Similarly, if the will was made in a language that was foreign to the party making the will, evidence needs to be given as to how the will instruction was obtained particularly if the will is complex or contains significant alterations from earlier changes within the will there has to be a detailed explanation.


Was there a will at all?

Even where there is an intestacy (no evidence that the deceased left a will), an estate can be claimed against. An intestacy occurs where a person has not made a will or if a pre-existing will is declared invalid and there is no evidence of any earlier will made by the testator. Under the laws of England and Wales should a party die intestate then the intestacy rules apply which dictate how the estate is to be administered and the parties to whom the estate is to be left to and under what circumstances.

The current intestacy rules do not make any provisions for surviving partners who are either unmarried or did not have a formal civil partnership at the date of their partner’s death. This does not mean that some cohabiting partners may not be able to bring a claim against the estate for reasonable financial provision. Any party who can prove that they have a potential claim to an interest in the estate can seek reasonable financial provision under the Inheritance (Provision for family and dependants) Act 1975. This legislation provides the means by which the party may seek to claim that they have a beneficial interest in a party’s estate.


Criminal Acts

As previously mentioned, if there is evidence of criminality and falsification, then proof that a fraud has taken place can invalidate wills and codicils and this can prevent such a document being submitted to probate. An investigation can be made where there is will forgery and evidence of any fraudulent conspiracy to benefit from a will or any evidence of destruction of a will are all the basis for a police investigation.

Normal indicators that there is a problem are for example :-

  1. If the signature on the will does not reflect the testator’s normal signature
  2. Where there are missing page numbers or fonts or varying margins or other evidence to indicate that pages may have been substituted or replaced or that there is false copying which can be proven by handwriting experts.

There is another instance known as calumny which relates to a false representation being made to a testator about the character or conduct of a potential beneficiary in order to persuade the testator to change the will. This is a further situation that requires detailed evidence particularly witness evidence to confirm that such a fraud or ‘poisoning of the mind’ has taken place.


Professional Neglect

Where a ‘professional’ has negligently drafted the will a common problem can arise if the instructions of the party who made the will is found to be carried out in the direct presence of a benefitting party. Suspicions of a lack of professional independence has often prompted a will dispute. Also if there is no proof of appropriate advice being given to the testator about correct procedure in relation to the signature of the will and any delay in the preparation of the will so that it is not signed before the testator dies can be a type of position that requires independent professional consideration.


Anyone Important Been Overlooked?

One of the most common forms of will dispute arises due to a beneficiary or potential beneficiary having been left out of the will. Similarly, if the share or interest of a beneficiary under the terms of a will is insufficient or does not reflect earlier promises then this may warrant an investigation.

If evidence can be given regarding any suspicious activity prior to the death of the deceased such as suspicious gifts of money or property being given to a third party, then it is advisable to seek legal advice for further action to be taken.


How Long Have I Got?

Dependent upon the type of claim that a party may have there are limitations in respect of different types of claim.

  1. A claim under the Inheritance Act must be issued within 6 months of the date of issue of the grant of probate.
  2. Any claim for maintenance needs to be made 6 months from the issue of grant of probate.
  3. Any beneficiary making a claim against the will has a limitation of up to 12 years from the date of death.
  4. Where there is evidence of criminality such as fraud, there is no time limit.

It is generally recommended that if there is a will that requires to be contested, you should make arrangements by yourself or through a lawyer to act quickly, lodge a caveat and pursue a Court action.


Cost

One of the major issues of anyone concerned about contesting a will is the funding of such an action. If you have no funding ability with no private funds for a legal action and no pre-existing personal insurances, such as:

  1. a house or contents insurance policy or policies that attach to bank or building society accounts or
  2. professional insurances through your occupation or professional body or union

then we at Jarmans will always seek to obtain for you the benefit of a different form of funding arrangement that could be made. We have unique professional alliances where contractual arrangements such as

  1. A Damages Based Agreement,
  2. Discounted Conditional Fee Agreement or Standard Conditional Fee Agreement (sometimes referred to as No Win No Fee) and
  3. After the Event Legal Expense Insurance

These are all types of funding arrangements that can be made to meet your professional lawyers fees and insure against the position should you lose the action. It should be noted that parties in contentious probate proceedings sometimes believe that costs incurred are payable out of the estate automatically. This is not always the case. Just as with other types of litigation probate claims will follow the usual rule that the loser pays the winners costs. It is always important to determine such funding factors. Jarmans can also offer that once a risk assessment is done, there is a possibility that a private litigation investor may back a case and funding arrangements can be made to take a case to trial. Please always contact us to discuss such matters in the first instance as our experienced professionals can often assist in different forms of professional fees arrangements.


If you have found yourself in the position of needing to contest a will or part of a contentious probate matter and would like to seek independent legal advice the get in touch on 01795 472291 or email enquiries@jarmans-solicitors.co.uk