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Contentious Probate

The death of a friend or family member is a time for grief, gathering with others for a funeral and sometimes memorial services, remembrance and reflection – and sometimes, a puzzled or angry trip to the solicitor, if there are any surprises or problems with inheritance.  Most people know there can be complications if there is no will, although the law provides for the distribution of assets amongst family members – including illegitimate ones who can prove their relationship – in this case.  It is also quite possible that there can be problems if there is a will.

Challenging the will

Sometimes, a will is not valid because of poor drafting or lack of proper advice about arranging the execution (signing in front of witnesses); beneficiaries who lose out will be able to sue the drafter of the will for negligence if it was his or her fault. 

A will could be forged, in which case the witnesses have to be contacted to recall whether they actually saw the deceased sign the will.  If the witnesses are dead, or cannot remember, the matter can end up in court, with a handwriting expert to help the judge, using other copies of the signature of the deceased, for example, on letters or cheques, to help him.

More often, friends or relatives who thought they would inherit allege that a late will did not represent the true wishes of the deceased:  that is, that it was signed after the deceased had lost their mental capacity, or that they were pressurised into changing it.  This happens particularly with so-called deathbed wills, which may not have been supervised by a solicitor to ensure that the deceased was able to give instructions and fully understood the consequences of their new will.

Inheritance (Provision for Family and Dependants) Act 1975

If the deceased left dependants but did not provide for them in the will, they may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Such claim must normally be brought within 6 months from the date of the Grant of Representation, but court can allow an out of date application. It is also possible to make a claim even if the deceased did not leave a will.  This Act enables a court to make reasonable provision for the applicant given all the circumstances of the case.

The dependant need not be a relative, or disabled, or even a deserving person: if a secret mistress was provided with a flat, the court may well give her that flat even if the will left it to the widow.  Or, an adult child who never left home and never worked may apply under this Act for greater provision than his or her sisters and brothers, if the will or intestacy provided for them all equally, leaving  the dependant worse off than before.

The court can take into account, however, the deceased’s wishes. Sometimes a statement is incorporated into the will or the deceased may leave a separate letter explaining why there was no provision made for the applicant under the Act.

Lifetime gifts

It is surprisingly common that parts of the estate disappear before death.  If the deceased went into a home or hospice, for example, their car, grandfather clock and even contents of  their bank account could be taken by anyone with access to them.  Unless they were taken by a joint owner, those assets must be accounted for and included in the estate – so long as the gifts were within seven years of the death.  If there is any question whether the assets were a gift from the deceased  or the donee took them without authority , again, this is a contentious probate matter. 

The situation is similar during the period between death and the distribution of the estate by the personal representatives, although during this period, there is no question of a “gift,” as such.  If Granny promised you would have her engagement ring, and there is no bequest in her will, it is not yours to take unless you can produce a properly executed codicil (a written addition to the will) or you can establish that it was given to you by Granny immediately before her death and that she made the gift knowing that she was going to die in the near future.  In order for such a gift to be valid, it must have actually been handed over to you by her, with the intention that she no longer owned it.

Beneficial interests

Solicitors advise anyone who converts their house to accommodate a relative or buys one with a “granny flat” to declare in writing exactly who is to benefit from the property and in what shares in the event of death or sale.  However, often people fail to do so when they make large contributions to help with property repairs or renovations, particularly if they live in a property belonging to someone else. 

If the person who spent money was led to understand that they had a share in the property, or even a right to live in it and that is not reflected in the will, or there is no will, then they need to think about a legal claim.  Cohabitees and adult children who helped the deceased may not have thought to protect their interests until after a death, when they could face eviction by beneficiaries.

Ask us for advice

Clearly, these are delicate and difficult issues and they arise at a time of deep sadness and, often, shock and upheaval.  Make an appointment with one of our probate specialists, Outi Hubbard or  Sarah Wilcox  for sympathetic, realistic and confidential advice.  If you think you may have a probate claim, or you believe you may need to defend one, we can give you appropriate advice.