Legal

HOW TO CONTEST A WILL AFTER PROBATE

John Osman, Senior Associate Solicitor, Litigation & Dispute Resolution Team, Mogers Drewett

Losing a loved one is difficult but add to this a dispute and a sad situation can quickly become confrontational and complex.

Wills can be challenged for several reasons including: •If the deceased lacked mental capacity •The will was not properly executed/witnessed •There was undue influence on the person making the will •The will is fraudulent or a forgery •A family member who was dependant on the deceased has been excluded or not provided reasonable provision

Once you have decided the grounds on which you wish to contest the will, there are various options available to resolve the issue.

Gather information Unless there is going to be a coroner’s inquest, the GP or hospital should issue a medical certificate so that the death can be registered, and a death certificate obtained.

If there was a will, obtain a copy as it will allow you to identify the executors (the people who will be responsible for administering the estate) and who will benefit from the estate. If there is no will, then it is likely the rules of intestacy will apply.

Resolution The first step is for a Letter Before Action to be served by the person challenging the will to the executors. The executors must respond and either accept, negotiate, or dispute the claim. If there is a significant dispute, then it may be that the only way to resolve the matter is to commence court proceedings.

Inheritance Act Claims Under the Inheritance Act 1975, a will can be contested within 6 months of ‘grant of probate’ being issued, if it fails to make reasonable provision for spouses or children. If a family member has been deliberately excluded from a will, then the person making the will should give reasons why that family member has been excluded in a note accompanying the will.

Caveats A caveat is a formal notice that is lodged at the probate registry which stops the executors from administering the estate. A caveat can last up to 6 months unless appealed or extended.

A caveat can be put in place if there is a concern over the will authenticity. For example, if you believe the will is a forgery, or a more recent will exists or if the person who has been appointed as an executor is not a suitable person to undertake this task.

The grounds for removal of an ‘unsuitable’ executor are: Incapacity – if a physical or mental disability prevents them from performing their duties Disqualification - because of conviction of a crime resulting in imprisonment Unsuitability - because of serious misconduct or a conflict of interests

Unsuitability is the most common ground on which applications for removal are made. The conduct must be serious such as stealing from the estate or causing loss, for example by making payments not authorised under the will or breaching the executor’s legal duties.