CONTENTIOUS PROBATE
Many people hold a misconception that if you leave a Will (or not), everything owned by them will pass to their loved ones, and that they will be well provided for. Unfortunately, that is not always the reality!
The reality is that a Will can be challenged on many grounds, as follows:-
1. Mental Capacity – “knowledge and approval”
A common example of this is alleging that the deceased was of unsound mind when s/he made their Will.
2. Invalid Will, under the Wills Act 1837
If the Will doesn’t comply with the law, it may be deemed invalid. For example, the Will may not contain the deceased’s true signature, or is defective in some other way, such as being improperly witnessed. The law in this area has recently gone through Parliament due to the pandemic, with some changes being made as to the validity, *or not), of executing a valid Will.
3. Duress/Undue Influence
This is a common, (and the hardest of all) ground to prove, as it involves one person (or more), placing pressure on the deceased to leave their Estate to them/another. Every case depends on its own facts, and therefore, it usually involves the need for witnesses to give evidence on this ground.
4. Inheritance (Provision for Family and Dependants) Act 1975
This ground relates to another suggesting that they were being maintained by the deceased prior to his/her death, or that they were not properly provided for in their Will. It is commonly used by spouses, (and ex spouses), on the deceased’s death.
5. Replacement Wills
An earlier Will may be challenged to be the valid Will, as opposed to the last Will. Common examples are where a beneficiary is provided in the earlier Will, but not in the last Will.
6. Negligence Claims
It could be that the solicitor or Will Writer improperly drafted the Will, in failing to follow the deceased’s wishes, which leads to disappointed beneficiaries seeking to challenge it.
7. A person can also seek to make a Claim against the deceased’s Estate on the grounds of their intestacy in that reasonable financial provision was not made for them.
Other areas of challenge relate to the following:
A. Trust Disputes
An example of this is when a person is entrusted to handle money, and/or assets, but abuses their position of trust, leading to a potential breach of trust, allowing one to take action against them.
B. Court of Protection
The Court of Protection looks after the affairs of vulnerable people, who can be open to abuse in relation to their money, and/or property. In practice, this is seen once they have lost the mental capacity to manage their own affairs. It is at this stage that it would be prudent to have a Lasting Power of Attorney in place, thus preventing abuse of the above kind.
Most, if not all of the above challenges, are capable of being settled via mediation, than the costly affair of going through the court process, the latter of which can take years to resolve; is stressful to both parties and the deceased’s families; with no guarantee on the ultimate outcome, and/or recovery, including that in relation to costs. Such cases can also accrue substantial costs consequences, sometimes in excess of £100,000, which ultimately leads to the reduction of the Estate for all concerned. Litigation is a “lottery”, a risk, a gamble, and clearly not in any ones interests to pursue, let alone that which was desired by the deceased when s/he made his Will.
On top of that, the courts expect the parties to mediate, preferably before taking matters to court, although inevitably, if mediation, (or some other method of alternative dispute resolution) is not used by the parties before court proceedings are taken, it will be raised again during the court proceedings, when an unreasonable refusal to engage in ADR, can lead to the “refusing” party having to pay the other party’s costs.