Will and probate disputes – FAQs

Will and probate disputes – FAQs | Tuesday 14 September 2021 | 7 min read

We have set out below some of the common issues that we are frequently asked about contested wills and contentious probate matters. Whatever your situation, contact us for a free, no-obligation, confidential chat and we can explore your situation in more detail.

What is probate?

In England and Wales, “probate” is the legal authority by which someone can distribute the Deceased’s assets according to either their will or under the intestacy rules (which apply if there is no valid will). The assets owned by the Deceased at the time of their death are referred to collectively as their Estate.

Am I entitled to a copy of the will?

Only the executors named in the will are entitled to see it before a grant of probate is obtained. If anyone else asks for a copy, all of the executors must agree to disclose the will.

However, once a grant of probate has been obtained, the will (and the grant of probate) become publicly available from the Probate Registry. Anyone can obtain a copy for a small fee.

If a grant of probate isn’t required, for example if the Deceased had a small Estate, then the will does not become a publicly available document.

How long do I have to make a claim in relation to an Estate?

Certain claims in relation to an Estate have a six-month time limit which runs from the date of the grant of probate. For other probate claims, there is a much longer period within which to bring a claim. You should contact us as soon as possible if you are concerned or upset about an issue concerning an Estate.

Can I do anything to prevent a grant of probate being issued?

If you feel that there is something strange about the content of a will or the manner in which it was made, you can enter a ‘caveat’ with the Court. Entering a caveat prevents someone else from obtaining a grant of probate without you first being given the chance to object.

Can I still contest a will once a grant of probate has been obtained?

Yes, this is still possible if you have grounds to suspect that a will may not be valid.

On what grounds can I challenge the validity of a will?

There are five main grounds on which you can challenge the validity of a will. We discuss these in detail in our longer article ‘On what grounds can I challenge the validity of a will?’

How can I find out more information about how the will was prepared?

If you are concerned about a will’s validity, we can obtain further information from the solicitors who drafted it and, if required, obtain medical records to investigate your concerns further. We can also instruct experts in fields such as psychiatry and handwriting to provide further evidence to build your case.

What happens to the Estate if a challenge to a will is successful?

The will will have no effect. The Estate will instead pass under the terms of the deceased’s previous will or if there is no earlier will, under the intestacy rules.

What if I am left nothing or very little under the will or the intestacy rules?

Under English law, people are entitled to leave their assets to whoever they choose. However, it may be possible to bring a claim if you stand to inherit little or nothing from the Estate. Find out who can make a claim in our article ‘Making a claim against a will.’

I was made a promise by the deceased but it is not in their will – what can I do?

It may be that the deceased promised to leave you a certain asset or sum of money which was not actually included in their will.

If you have relied on this promise and made changes to your detriment, such as giving up work or selling your own house to move in and care for that person, then you may potentially have a claim against the Deceased’s Estate.

The will is not clearly drafted – what exactly does it mean?

The rise of DIY internet wills means that the testator’s intentions may not be clearly and unambiguously set out in the will. Disputes as to the meaning of clauses in a will can also arise even where the will has been professionally drafted.

These types of disputes can cause serious issues in deciding how to distribute the deceased’s Estate. We can assist you with resolving issues as to the true meaning of a will by:

• Providing an opinion on what the terms of the will mean;
• Applying to Court for a declaration as to what the disputed term means; and/or
• Applying to Court for an order that the will be rectified (i.e. changed) either to correct a clerical error or where there was a failure on the part of the will drafter in understanding the deceased’s instructions.

An application to rectify a will should be made within six months of the date of the grant of probate. If you have concerns about what a will means, please do not delay getting in touch with us.

Are the executors taking too long to administer the Estate?

Estates can take up to a year to administer and this can sometimes be frustrating for beneficiaries. That said, an executor may be taking unnecessarily long to act and, in certain cases, may be unable to carry out their duties.

You can apply to have the executors removed or obtain a court order to progress the administration properly. Even a robust letter from us reminding the executors of their responsibilities may be all it takes to get the Estate administered promptly.

We can advise on your options in disputes over the role of executors and trustees, particularly if you feel as though the personal representative is acting in their own interests rather than in the interests of the Estate.

Has a claim been made against an Estate you are administering?

Generally speaking, anyone administering an Estate should remain neutral in disputes between the actual and potential beneficiaries. However, you may personally receive a complaint or claim about the way the Estate is being administered. In this situation, we can advise on the most appropriate response, the potential costs of doing so and help you to resolve the issue swiftly.

For more information about how SA Law can help you with the administration of an Estate, click here.

Are you involved in a wills dispute claim and want to know more about funding options?

The first thing to do is check your current insurance policies and credit cards to see if you have any legal expenses cover that might pay legal costs in this situation.

If you don’t have legal expenses cover through an existing insurance policy, SA Law may be able to offer one of our funding options to help you. These include:

• Fixed fees, where we agree a set fee for each stage of your matter, including an initial review and our initial advice.
• Conditional fee agreements (sometimes called ‘no win, no fee’), where we agree to defer all or part of our fees until the outcome of the matter. This will include payment of an additional success fee if you win (either by winning at trial or settling on terms that result in a payment for you).
• Specialist litigation funding loans that are available for people making or defending claims. We work with a specialist broker to help you obtain a loan at a favourable rate and can discount our fees by the same percentage as the interest rate to make it even more affordable.

Before offering a funding option, we will need to assess the merits of your claim and will offer a fixed fee for doing so.

We will advise you on the costs risks of proceeding with a case and the prospect of recovering your costs from the Estate of the deceased or from your opponent. We can also help you to obtain insurance cover to cover your liability to pay your opponent’s costs.

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  Clare
  Mackay Legal Director
  Commercial Litigation & Dispute Resolution Team

  • Phone 01727 798 025
  • Mobile 07702 718 706
  • Email clare.mackay@salaw.com
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