Contentious probate refers to a legal dispute that arises when the validity of a Will or the distribution of an Estate is called into question. This can happen when a family member or other interested party feels that they have not been fairly treated in the Will, or they suspect that the Will was made under duress or without proper legal formalities. You must seek legal advice as soon as possible if you wish to contest a Will or bring a claim against an Estate so you can be advised of any time limits that may be relevant in which to commence a claim.
Some of the factors that can render a will invalid are:
- Lack of testamentary capacity
- Lack of valid execution
- Lack of knowledge and approval
- Undue influence
- Fraud or forgery
Did you know, from the case Kenwood v Adams [1975] CLY 3591 and which was later confirmed in Re Simpson [1977] 121 SJ 224 The Golden Rule was established? The Golden Rule is an obligation for the solicitor preparing a Will to ensure that the testator has sufficient mental capacity when the Will is made. This Rule also applies to situations where the solicitor has reason to doubt whether the testator is of sufficient sound mind to make a valid Will. The Golden Rule mans that solicitors are generally expected to obtain a documented assessment from a medical professional as to whether the testator has testamentary capacity when the Will is made.
Many people are also unaware that if someone witnesses a Will and they are one of the intended beneficiaries of the Will, then the gift to them will be void.
Disputes can also arise when someone dies without leaving a Will (dying intestate). Whilst the law set outs who should inherit should someone die in these circumstances this can still lead to disputes between family members especially if there are questions about the deceased’s wishes.
Our Contentious Probate Team are well versed in representing their client’s interest should such disputes arise and keep abreast of case law in this emotive area. The recent case of Tociapski v Tociapski [2013] EWHC 1770 (ch) has potential implications for both Claimants seeking to contest the testator did not have the necessary capacity to execute a Will and for any person defending such a claim.
We can advise on the legal options available to clients such as lodging a Caveat with the Probate Registry, contesting the Will, negotiating a settlement with other beneficiaries, or seeking a Court Order to protect the client’s interests.
We understand that contesting a Will or disputes involving Estates can be very difficult and upsetting, especially as this will usually follow a recent bereavement.
If you feel that a Will has not been duly executed, or you find yourself in a position where you need to defend the execution of a Will, please get in touch with us.
We aim to provide you with support, explain your options, provide clear advice and protect your interests. Should you wish to know more please do not hesitate to contact our Contentious Probate Team on 01202 877400 or email disputeresolution@newnham-jordan.co.uk
