Contested Wills & Probate

Testamentary Capacity

For a Will to be valid, the person making it must have had the necessary mental capacity at the relevant time.

The assessment may include whether that person understood:

• that they were making a Will and its effect;
• the general nature and extent of their property;
• the people who might reasonably expect to benefit; and
• how those considerations affected the decisions recorded in the Will.

A diagnosis of dementia or another condition does not automatically mean that a person lacked testamentary capacity. Capacity is specific to the decision and time in question.

Undue Influence

A Will may be invalid if the person making it was coerced into including provisions that did not reflect their true wishes.

Undue influence requires more than persuasion, advice or an appeal to affection. The evidence must establish coercion sufficient to overpower the person’s independent decision-making.

These cases are often evidence-intensive because the relevant events occurred in private and the principal witness has died.

Lack of Knowledge and Approval

A valid Will must represent the intentions of the person making it. A challenge based on lack of knowledge and approval may arise where there are suspicious circumstances surrounding the preparation or execution of the Will.

Relevant circumstances may include:

• substantial or unexpected changes from an earlier Will;
• the involvement of a major beneficiary in preparing the Will;
• unexplained exclusion of close family members;
• difficulties with reading, language or communication;
• lack of independent advice; or
• uncertainty about whether the contents were properly explained.

Claims for Financial Provision

Even where a Will is valid, certain people may be able to claim reasonable financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Potential applicants include:

• a spouse or civil partner;
• a former spouse or civil partner who has not remarried or entered a new civil partnership;
• a person who lived with the deceased as a partner during the relevant period;
• a child of the deceased;
• a person treated by the deceased as a child of the family; or
• a person maintained by the deceased immediately before death.

The court considers a range of factors, including the applicant’s financial circumstances, the size and nature of the estate, the needs of beneficiaries, the deceased’s obligations and any relevant disability.

Claims under the 1975 Act are generally subject to a short time limit linked to the grant of representation. Urgent advice should be obtained where such a claim is contemplated.

Executor and Administrator Disputes

Executors and administrators, collectively known as personal representatives, are responsible for collecting estate assets, paying liabilities and distributing the estate to those entitled.

Disputes may arise where a personal representative is alleged to have:

• delayed the administration without justification;
• failed to provide estate accounts or information;
• distributed assets incorrectly;
• sold property at an undervalue;
• preferred one beneficiary over another;
• placed themselves in a position of conflict;
• misused estate money or assets; or
• failed to comply with the Will or intestacy rules.

Depending on the circumstances, it may be possible to seek information, require an account, obtain directions from the court or apply for the removal and replacement of a personal representative.

Beneficiary Disputes

Blackstar Law can assist with disputes involving:

• disagreement over the interpretation of a Will;
• entitlement under an intestacy;
• missing or unknown beneficiaries;
• lifetime gifts;
• jointly owned property;
• ownership of personal belongings;
• promises made by the deceased;
• trusts created by a Will;
• disputes over funeral arrangements; and
• distribution of estate assets.

A claim based on a promise may, in appropriate circumstances, involve proprietary estoppel. This can arise where a clear assurance was made, the claimant reasonably relied on it and suffered a detriment as a result.

Caveats and Probate Applications

Where there are genuine concerns about the validity of a Will or the entitlement of the person applying for probate, it may be appropriate to enter a caveat at the Probate Registry. A caveat can temporarily prevent a grant of representation from being issued.

A caveat should not be used simply to delay administration or secure leverage in an unrelated dispute. Its use must be kept under review, particularly if it is challenged by another party.

Blackstar Law can advise on:

• whether a caveat is appropriate;
• entering or renewing a caveat;
• responding to a challenge to a caveat;
• applications for probate;
• competing probate applications; and
• court proceedings concerning the validity of a Will.

Resolving Inheritance Disputes

Many inheritance disputes can be resolved without a final court hearing. Possible methods include:

• correspondence and exchange of information;
• negotiation;
• without-prejudice meetings;
• mediation; and
• a written settlement agreement.

Mediation can allow the parties to consider practical and flexible outcomes that a court may not be able to impose. Where settlement is not possible, Blackstar Law can advise on the procedural steps required to pursue or defend court proceedings.