Sadly, will disputes are becoming increasingly common, particularly following the pandemic, which caused difficulties with regard to will drafter’s meeting their client’s face to face to take instructions and an increase in homemade wills. But with the right approach, the majority of probate disputes can be resolved without lengthy – or costly – court involvement, through alternative routes, such as mediation.
A will dispute can be both legally complex and emotionally challenging. If you suspect that a will may be invalid, we can help you to investigate the circumstances in which the will was prepared and executed.
Typical grounds to challenge a will?
A will can be challenged on the following grounds:
- It was not properly executed;
- The testator lacked testamentary capacity;
- The testator did not know and approve of the contents of the will;
- Undue influence;
- Fraud or forgery.
- Fraudulent calumny – poisoning the testator’s mind against a beneficiary.
Who can challenge a will?
Anyone can contest a will if they have concerns that it might be invalid. This is usually someone with an interest in the estate.
Challenging a Will – the process
The first thing to do when challenging a will is to seek immediate legal advice from an experienced solicitor. They will be able to advise you about the appropriate grounds for a claim.
Once your solicitor has established you have genuine ground to challenge the validity of a will, they will submit a Caveat to the Probate Registry, to stop a Grant of Probate being issued in respect of the disputed Will.
Lodging a Caveat
If you plan to challenge the validity of a will, then entering a Caveat to prevent probate from being granted could be your first step. A Caveat can be entered at the Probate Registry to stop a Grant of Probate or Letters of Administration being issued.
Stopping probate will allow a period of time to make relevant enquiries about a Will dispute. A caveat is effective for six months, but they can be extended on an ongoing basis.
To enter a Caveat, you will need to complete an application form for the Probate Registry. This can be done online for a fee of £3.00.
When should you use a Caveat?
A Caveat may be appropriate in the following circumstances:
- where there are doubts about the validity of a Will;
- where there is a dispute about who should be a personal representative; and
- where a citation is to be taken out.
It is not appropriate, however, to lodge a caveat where a person intends to pursue a claim under the Inheritance (Provision for Family & Dependants) Act 1975.
Can a Caveat be removed?
The individual who registered the Caveat, (or the “caveator”), can remove the Caveat at any time. Alternatively, if the executor of the will feels that the Caveat is unjustified, they can seek to have it removed by lodging a ‘Warning’ with the Probate Registry.
Once the ‘Warning’ has been duly served, the caveator has 14 days to ‘enter an Appearance’ giving particulars of any contrary interest in the estate. If the caveator does not have a contrary interest to the person warning but wishes to give reasons why a Grant should not be issued to the person/s named as Executor in the Will, or, a person/s who can apply for Letters of Administration (where there is no Will) against the sealing of a grant to that person, they should issue a summons for directions.
Once an appearance has been entered, the caveat becomes permanent and can only be removed by an order of the court or District Probate Registrar.
Our contentious probate solicitors are here to guide you through the caveat process.
Gathering evidence – It is important to gather evidence in support of your claim, which may include the testator’s medical records, the will drafter’s file, witness evidence and in some circumstances expert evidence.
Why choose Trethowans?
Disputing a Will can be emotionally challenging and complex, especially if it is the Will of a loved one. Our contentious probate solicitors strive to make the whole process as simple as possible by keeping you informed throughout each stage and using clear, jargon-free language. Our many years of experience helping others achieve satisfying results means we are able to provide you with all the legal support you need to get the issue resolved.
If you are seeking to challenge a will, arrange a consultation with one of our specialist contentious probate lawyers by calling 0800 2800 421. We have offices located across the South in Bournemouth, Poole, Salisbury, Southampton and Winchester.
