How long do I have to contest a Will?
If the person who has made the Will is still alive and you have concerns that it is not a valid Will then, in certain circumstances, you can consider making an application to the Court of Protection for a Statutory Will to be made on that person’s behalf. This can only be done if the person who should make the Will lacks capacity or is particularly vulnerable and in need of protection. Specialist advice would be needed.
If you wish to contest a Will after someone has died then different time limits will apply depending on the challenge. A Will takes effect on death and ideally any challenge to the validity of the Will should be brought before a Grant of Probate is issued. A Caveat can be entered to prevent the issue of a Grant and allow more time to investigate whether a Will is valid.
A beneficiary can make a claim against an estate within 12 years of the date of death but it is preferable to make a claim as soon as possible. The longer you wait to challenge a Will the less chance there is that there will be assets available within the estate.
If you are bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 then time start to run when a Grant of Probate or Letters of Administration is issued and runs out six months later.
On what grounds can I challenge a Will?
You can challenge the validity of the Will itself on a set number of key grounds as follows:-
- Lack of due execution
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence
You can challenge the content of a valid Will if you have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or if you have what is known as a proprietary estoppel claim which is a claim to enforce a promise you have relied upon to your detriment.
Will I have to go to Court?
The vast majority of cases will settle though of course some disputes do have to be dealt with by a Court. It will be necessary to engage in negotiation and mediation to try to avoid going to a trial but it cannot be ruled out that a Judge will need to make the final decision.
In a dispute over a Will or provision within an estate each party will initially be responsible for their own costs. If matters are settled then it is possible to reach agreement as to how costs for each party should be dealt with.
If the matter is resolved at a trial then a Judge will decide. It is usually the case that the losing party pays the costs of the other parties but in some circumstances a Judge may order that costs of one or more parties to the dispute are borne by the estate itself.
The Executor is not doing anything – what can I do?
Executors have a duty to administer the estate in accordance with the terms of a Will but sometimes Executors do not get on with this job. It may be possible to seek the removal or replacement of an Executor either with someone else who is suitable and willing to act or with an independent administrator who will usually be a qualified professional.
The procedure for removing an Executor is different depending on whether or not a Grant of Probate has been issued and you should seek specialist advice to make sure that the correct application is made.
Courts will not easily remove an Executor and so it will be necessary to show that the Executor is not carrying out their duties.
I don’t get on with my fellow Executor – what can I do?
In the first instance Executors should try to work together and in some circumstances a mediation can help to resolve issues between them.
It is possible for two Executors (for example siblings who do not really get on) to agree to instruct a firm of solicitors to act on their joint behalf. That firm will deal with the administration of the estate as long as they get consistent instructions from each of the two Executors.
The other possibility is for both Executors to agree to stand down or to stand aside and for a replacement executor or an independent administrator to be appointed in their place who will then become the Executor of the estate.
Does an Executor have to produce accounts?
There is no obligation on an Executor to produce estate accounts but it is best practice to do this.
Estate accounts allow beneficiaries to see exactly what was in the estate, what has been paid out of the estate and how the estate is to be distributed so that they can crosscheck that against the terms of the Will. Ideally beneficiaries should sign estate accounts before a final distribution is made by the Executor to confirm that they agree the way in which the administration has been carried out.
Can I stop a Grant of Probate being issued?
Yes – if you are concerned that a Will is not valid or that the person who is applying for a grant is not fit to be an Executor then you can lodge a Caveat at the Probate Registry. This sits on the Probate Register for six months (unless removed or renewed) and prevents any Grant being issued.
Caveats can be “warned” and costs may be incurred if a Caveat is maintained in circumstanced where it should not be preventing the grant. Ideally if you issue a Caveat it would be sensible to take specialist legal advice to make sure that the right steps are being taken to look at the validity of the Will so that the Caveat can be justified.
Can I get a copy of a Will?
Once a Grant of Probate has been issued the Will becomes a public document and you should be able to apply to the Probate Registry to download a copy of that. The current fee for obtaining a copy Will and Grant is £1.50.
Prior to the issue of a Grant, the Will may not be shown to you although an Executor retains the right to disclose the Will if they are happy to do so. Beneficiaries may be entitled to sight of the Will but non-beneficiaries are not.
In some circumstances, if you expected to be a beneficiary of a Will and you are told that you are not it may be possible to make a Larke v Nugus request to the solicitors who wrote the Will for information about the circumstances in which that occurred so that you can decide whether or not to bring a challenge as to the validity of the Will itself.
Who can contest a Will?
Anyone is able to contest a Will but given the costs involved only someone with a financial interest in the outcome would be best placed to do so. If a Will is successfully challenged then any previous valid Will becomes the “last Will and Testament” of the deceased so it is important to know what that Will says before entering into a challenge. If a person challenges a Will on the grounds of lack of testamentary capacity but is not provided for in the previous Will then even if a challenge succeeds they stand to recover nothing.
For more information, please contact a member of our Contentious Trust & Probate team.