Protecting last wishes
When it comes to estates, our focus is on ensuring that your loved one’s last wishes are respected.
Navigating contested probate
In most cases, where a valid will exists, probate will be granted and an estate will be administered over the coming months. If there is no will, the estate is dealt with according to the rules of intestacy. Contested probate broadly refers to circumstances where you and the other party disagree about how an estate should be distributed.
Contesting a will
There are plenty of reasons why you might want to contest probate or have concerns about how an estate is being dealt with, very often this comes down to fairness or views on a loved one’s last wishes. Alternatively, there may be issues with the validity of the will itself or the testator’s mental capacity at the time their will was prepared and/or signed.
When considering whether you can contest a will, your claim will need to fall under one (or more) of the following:
- The will isn’t valid because it has been incorrectly drawn up or executed.
- The person making the will lacked the mental or testamentary capacity to make a will at the time it was drawn up.
- The person making the will was under undue pressure or influence at the time of making the will, therefore, the will does not reflect their actual wishes.
- Fraud or forgery.
- You may be able to challenge a will if you were married, in a civil partnership or financially dependent on the deceased at the time of their death. This is significant if the will has not made adequate financial provision for you.
- If a will has been drafted by a lawyer and it does not properly carry out the person making the will’s true intentions, you may be able to put forward a rectification and construction claim. For example, perhaps the person making the will instructed that the estate should have been split between their two children but the lawyer only named one child in the final will.
Obtaining a copy of the will
When you are thinking of challenging a will, it is important to think about the circumstances that led up to the will being made, the instructions that were given to the will writer, the way that the will was drafted or amended and how the will was eventually executed and witnessed. Obtaining a copy of the deceased’s last will, or even earlier wills, is an important first step. This can be done by making what is known as a ‘Larke v Nugus’ request to the will writer (often a solicitor’s firm).
A Larke v Nugus request can only be made by a person who potentially has an interest in the deceased’s estate. For example, you might have been a beneficiary under a previous will but you later find out that the deceased updated their will and you were not included. If you have suspicions about the later will that was made (for example, if the deceased was perhaps suffering with a lack of mental capacity at the time it was made), then you may want to see the will file to determine whether you could make a claim.
A Larke v Nugus response should include a copy of the solicitor’s will file, which usually includes copies of attendance notes, correspondence and copy documents. The will writer should respond to a series of questions about the will and the circumstances surrounding the preparation and execution of the will.
An executor is not under a duty to disclose a copy of the will file if they do not wish to, however they could later be penalised for this decision if the matter proceeds to court. It is important for an executor to take legal advice and weigh up the available options.
If you feel that you have been affected by any of these issues, we can provide guidance on the necessary steps. Seeking expert advice as soon as possible is crucial, as there are time restrictions and deadlines within which challenges against a will or estate must be raised. We have extensive experience in resolving disputes and can give you the advice and support you need to make the best informed decisions for your situation.
For more information on how we can help you, please contact us.
