What should you do if you want to challenge a Will?

According to a recent article by The Economist, there has been a 400% rise in the number of probate claims listed at the High Court over the last 10 years. The first three months of this year also saw the highest number filed during any quarter on record.

There are several main reasons for this rise. Many people are living longer but often with diseases such as dementia which can rob them of mental capacity. Many younger generations are relying on inherited wealth to provide a foothold onto the property ladder. The value of people’s estates has risen due to factors such as a steady rise in house prices. People may also have more valuable assets in addition to their main home, such as pensions, holiday property, shares in a business or life insurance policies.

There are also more blended families than in previous generations. People may choose to cohabit, divorce or remarry.  They may have children from different relationships and step-children who rely on
them financially.

There are a number of grounds a Will can be challenged. Some of the more common grounds include:

•   The validity of the Will.  Where the testator (the person making the Will) does not have the mental capacity to prepare and understand or know what they were doing, or where their mind has been poisoned into making changes.

•   Creditors can make a claim against the estate where the person or their business owed money.

•   Where there is suspected forgery of the Will or the signature.

•   Where there is suspected fraud.

•   Inheritance (Provision for Family and Dependants) Act 1975 claims where the person has not made reasonable provision for the person bringing the claim.

•   Proprietary estoppel – where a claim has been brought by a person who has relied on assurances made by the testator and have suffered detriment as a consequence.

•   Forfeiture – where the beneficiary of the Will has been involved in the unlawful killing or has unlawfully aided, abetted, counselled or procured the testator’s death.

In addition to direct challenges to a Will there are also a number of reasons why the probate process itself can become contentious, which executors and beneficiaries need to be aware of.  This can be why in more complicated situations and high value estates it is helpful to appoint professional advisors to carry out probate. Probate disputes can quickly escalate, and claims have to be made quickly, within a specific timeframe, which is why it is important to discuss a matter with a solicitor as soon as possible and providing as much evidence as possible.

There are routes to avoid going to the High Court but take early legal advice to understand your position and the validity of your claim.

Anna Golding can be contacted at a.golding@gullands.com