Whether you wish to contest a will or you are defending a challenge, you need expert legal assistance on your side. Contentious probate can be a complex and time-consuming issue, so having professional help from an experienced probate solicitor is the only way to ensure your case has the best chance of success.
Why might a will be contested?
In England and Wales, a will can be contested by anyone who believes the document to be invalid, or by any dependent who feels the deceased has not adequately provided for them. These are known as the grounds for challenging a will, and can be outlined in more detail as follows:-
1. Inadequate provision: under the Inheritance (Provision for Family and Dependents) Act 1975, any person who was dependent upon the deceased can contest the will, if they believe the deceased as not provided an adequate inheritance to cover their needs.
2. Undue influence: if the deceased was under undue influence at the time of creating and signing the will, the document will be deemed invalid.
3. Lack of mental capacity: if the deceased lacked mental capacity at the time of creating and signing the will, the document will be deemed invalid.
4. Forgery: if the will is a fake or the signature is found not to be that of the deceased, the document can be deemed invalid.
5. Errors in the will: if there are any mistakes within the will – for example, witnesses fail to sign the document – then it will be deemed invalid. This is increasingly common as DIY wills become more popular. However, if these mistakes were the fault of a solicitor, there could be a case of professional negligence.
6. Dispute with executor or trustee: if an executor or trustee has behaved unreasonably or inappropriately, it will be possible to challenge their conduct.
How is a will contested?
If someone wishes to contest a will, a challenge should be made as early as possible, preferably before probate is granted. If a legal expert believes the challenger has a solid claim, a caveat can be lodged at the Probate Registry which prevents the probate process from proceeding for a period of six months.
The person defending the challenge must then seek expert legal assistance to discuss their options. They may choose to issue a ‘warning’, asking the challenger to clarify their grievance. If the challenger fails to respond, it may be possible to remove the caveat. Before this happens, however, solicitors will usually attempt to negotiate an agreement or suggest other methods of resolution, such as mediation. If an agreement cannot be reached, the next step will be to begin court proceedings.
Legal advice in Birmingham
If you would like to contest a will, or you are facing a challenge, you need to seek early legal advice from a probate solicitor. For assistance in Birmingham and the surrounding area, contact us at Roskell Davies solicitors. Call 0800 142 2901 or fill in a free online enquiry.