Wills, Trusts and Estates Disputes
Nadia Cowdrey, Head of the Tax, Trusts & Estates team is ranked in The Legal500 as a leading individual ’empathetic and develops strong rapport’ with clients.
On which grounds can the validity of a will be contested?
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue Influence
- Fraud or forgery
- Failure to execute the will properly.
Who can contest a will?
Is there a time limit for contesting the validity of a will?
No, although a claim can be defended on the basis that the person claiming has acquiesced or let time drift whilst knowing about the claim.
Which court hears contested will claims?
Usually the High Court.
How do I go about challenging a will?
Seek the advice of a solicitor specialising in contested will claims, preferably a member of the Association of Contested Trust and Probate Specialists (‘ACTAPS’). There are procedures unique to these claims which need to be followed.*
What if the will is valid but I am excluded from it (or excluded as a beneficiary if the person had no will and the rules of intestacy apply)? Do I have any claim for financial provision from the Estate?
- Yes – if you are a. a spouse or civil partner
- a former spouse or civil partner who has not re-married or re-civil partnered
- a child of the deceased – even if an adult
- someone who was living with the deceased as husband, wife or civil partner for a period of 2 years before death (ie even if you were not married or civil partnered)
- someone who was treated as a child of the Deceased
- any person who immediately before the death was being maintained by the deceased.
These are claims under the Inheritance Provision for Family and Dependants Act 1975 (‘the 1975 Act’)
Is there a time limit for bringing a 1975 Act claim?
Usually 6 months from the date of the grant of probate or letters of administration (although the court does have power to extend the time limit in some circumstances). This should not however ever be relied upon.
What should I do if I think I may have a 1975 Act Claim?
In view of the tight time limit, seek legal advice as soon as you possibly can, preferably a member of the Association of Contested Trust and Probate Specialists (‘ACTAPS’). There are procedures which need to be followed and you seek legal advice from your solicitor.
Which court hears 1975 Act Claims?
Either the County Court or the High Court.
What if the will is valid but the way in which the deceased promised me by way of inheritance does not feature in it? What can I do?
You may have a claim to the asset you were promised (or a part of it) under the doctrine of Proprietary Estoppel of Constructive Trust. You may also have a claim in negligence against those who prepared the deceased’s will.
Is there a time limit if I need to sue the will writer?
6 years from the date of death.
Is there a Procedure I need to follow if suing the will writer?
Yes. You need to follow the Pre Action Protocol for claims in professional negligence which can be found in the Civil Procedure Rules (‘CPR’).
We have a specialist team dealing with these types of claims. Partners Deborah Cain and Nadia Cowdery are both members of ACTAPS and both rated as leading individuals in this field of law in the Legal 500.
We offer a free 30 minute consultation to help you decide if you have a claim.
If you wish to take advantage of our expertise, please contact us using the contact information below.
For further information please contact us on 01273 324041, by email or complete our online enquiry form.