0161 413 8763

7 days a week from 8am - 9pm

Menu

Tag: Contesting Probate

Who Has Contesting a Will Rights?

Posted on by Jonny

If you are considering your contesting a Will rights, it is important to make sure that you are legally allowed to raise a dispute.

One of the main criteria for deciding if a person is entitled to contest a will is whether or not they belong to one of six defined groups that are considered to have the legal right to challenge a will or probate process.

In this guide, we will outline these six groups, along with some of the complex rules that define each group.

Family members

Whether you are related by marriage or by blood will play a factor in determining your right to contest a will. Those family members that are blood relations are in the Inheritance Act, together with a specific list that names relatives that can make a claim for declaring a will invalid.

Even if you aren’t a blood relative, your relationship with the testator will be taken into account. Moreover, you do have legal protection in those cases as well.

Understand contesting a Will rights in England or Wales? Learn more

Beneficiaries of contesting a Will Rights

As a beneficiary in a will, you have a legal entitlement to inherit your piece of the will. Consider two things that the executors of the will might not do.

  • First: what if they don’t pay you the sum the testator left to you?
  • Additionally, what if they don’t hand over any items the testator left to you in the will?

You’d have grounds to make a claim. This way, you ensure that you receive exactly what you deserve. By not executing the testator’s wishes as to the will states, it would be the case that the executor is acting unreasonably in their legal duties.

Furthermore, as a beneficiary, you can also dispute the division of the rest of the will. Especially if you consider the division of the deceased’s estate to be unreasonable.  It is worth remembering that, when considering a will, the ‘estate’ is not just property, but also entails the whole lot. All of the testator’s possessions, cash holdings, savings accounts or investments, and even the land they own.

Therefore, consider if you were in business with the testator as an equal partner. Next, the other business partners receive a greater share of the business than you were. Accordingly, you may feel that this is unfair and want to contest this.

Beneficiaries of earlier wills

As new people come into their lives, people do change their wills and will add these new people in. As a result, people previously in a will may be subject to removal. For example, if a person divorces and then remarries. It’s understandable that they would remove their ex-spouse from their will and replace them with their new spouse.

However, if you’re in an earlier version of a will but not the recent version, you can dispute the will. But only if you can prove that there is a valid reason why you should still be a beneficiary.

For example, say your ex-spouse pays you child maintenance to support the child(ren) you had together. But then the spouse dies, leaving you nothing in the will to help with the upbringing of your child(ren). Then it would be understandable that would want to contest their will.

With this example, any money or other part of their estate your ex-spouse leaves to your child(ren) belongs to them. Most likely, it goes into a trust until they reach adulthood. This money is not for you to use to raise them. You would need to make a separate application for the will to provide continued child maintenance payments.

In addition, this group could at times raise a dispute that causes a criminal investigation to commence.*

Creditors and contesting a Will rights

If you are someone the testator owes money to, you can claim this debt from the testator’s estate. If this is you, you should first try to have what is known as a Section 27 notice sent out. This can be a providence to help those the testator owes money to.

Broken Promises

Among contesting a will rights, this is a particularly major one.

Say you were relying on inheritance for your future that the testator says you’ll receive. As a result, you may be able to challenge that person’s will if they don’t follow through on that promise. You should know that this can be a complex area to dispute though. Therefore, seeking legal advice as early as possible is smart.

You’ll need to prove the promise was made, and that you’re suffering as a result of the promise being broken.

Financial dependents

Even if you are not related to the deceased, you may be able to to make a claim to their part of their estate if it can be shown that you were financially dependent upon the deceased, whether this was monetary or in the form of accommodation.

This group has protection under the Inheritance Act, so you will normally need to make this claim within six months of the probate date.

How we can help with contesting a will

If you fall under any of these categories, there is a chance that you may be able to successfully contest a will.

However, it’s essential that you take appropriate advice before contesting the will.

This is where The Inheritance Experts come in. Following your free, no-obligation discussion with us, we will transfer you to a specialist solicitor. Your solicitor is keen to challenge the will or probate process on your behalf given the circumstances of your claim. In turn, it helps you to get the share of the estate that you deserve.

If you are contesting a will you have not been named in or which you feel is unfair, do not hesitate to contact us via the contact form on our website or by calling 0161 413 8763.

*Particularly if it can be shown that they have been taken out of a will due to fraud or a person wielding undue influence on the testator. Especially when they were not in a fit state to be making decisions about amendments to their will.

How to Contest a Will

Posted on by Jonny

If you are considering contesting the will of a relative, it is vital that you are aware of the processes before you start to contest it. That’s true whether you believe that

  • the will is unfair;
  • it isn’t legally valid, or;
  • the testator suffers from undue pressure into making certain people beneficiaries.

This guide will help you to navigate the often complex world of contesting probate.

Contesting a will or contesting the process of probate when a will is valid can only be done by certain people. These people include the testator’s

  • living relatives;
  • those who were a beneficiary in a previous will, and;
  • those with significant reason to believe they’re a beneficiary in the latest will. For instance, if a promise has been made to the person by the deceased.

In addition, a contest of probate must also fall under one of a few categories. These categories include:

It is also important to remember that the time limits for contesting probate are strict. Therefore, you should make sure that you contest the will or the probate process within six months in some cases. However, in some circumstances, there is no time limit as to when you can contest the will.

How to Contest a Will

Contacting a specialist solicitor

If you are considering contesting a will, it is important to find out whether you have a viable claim. This is where The inheritance Experts come in – one of our advisors will speak to you on a free, no-obligation basis and will advise you whether you have a valid claim that has a good chance of success depending upon the facts.

Finding Grounds and Evidence

So, you have a claim that potentially has a good chance of success and you choose to go forth. We’ll put you in touch with a specialist solicitor with experience in wills and probate cases. They’ll also have a track record in achieving positive results for their clients.

Together, you will collect any evidence that you need to make your case. Subsequently, your solicitor will advise you what the best grounds are to contest the will.

Mediation

Once this is done, most solicitors will suggest mediation with the other beneficiaries. Often, this is the best possible first step to attempt to resolve the dispute.

During mediation, you will hold a discussion with the other beneficiaries. A third party without bias leads the discussion, helping you manage your disputes. This is with the aim of resolving any existing issues, any further issues that arise during the discussions and, ultimately, guiding all of the beneficiaries to a conclusion that everyone is happy with. In many cases, mediation will resolve the claim, and the case will not need to continue.

Going to Court

If there’s no resolution through mediation though, it will go to a probate court. There, a judge will balance the evidence and decide the merits of each beneficiaries’ claim. Also, they’ll consider the wishes the testator expresses in their will.

Going to court can be a long and costly process though, and you may not receive a result for a number of years if the judge is unable to make a decision. As we say, the case progressing to court is also extremely expensive. Moreover, if you lose, you may have to pay the other beneficiaries’ legal fees in full.

How to contest a will with our help

At The Inheritance Experts, we work with specialist law firms who have a proven track record in handling wills and probate disputes. This means they are well-placed to help you get the proportion of the estate you are entitled to.

If you believe you have grounds to contest a will and want to know if you have a realistic claim, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

Presumption of Advancement cases show need to put agreements in place

Posted on by Jonny

You may have seen a probate story in the news the last few days about a mother not being able to claim back money from her late son’s estate.

The mum said that she had loaned her son £170,000 in 2005 to help him buy a house.

Having been diagnosed with an aggressive form of cancer in 2010, the son paid his mother £90,000 from a £350,000 compensation award he was given. The son then married before sadly passing away in 2016 with the entirety of his estate being left to his wife and a number of named charities.

Last June, the mother made a claim on the estate for the outstanding loan (£80,000) as she was not provided for in the deceased’s estate.

However, when the case came to court, the judge found that the mum had not proven the £90,000 was a repayment of the original loan rather than a gift. In addition, she wasn’t able to prove the original £170,000 was loaned rather than gifted to her son. Therefore, the judge ruled against the mum as he considered a legal principle called Presumption of Advancement (PoA) to apply.

What is a Presumption of Advancement?

Put simply, PoA is a well-established principle in UK law which states that courts will presume that, if a person transfers money or property to their spouse or child, this is considered to be a gift in the absence of any evidence to the contrary.

This is why, when the Court of Appeal heard the case again last month (December 2019), it upheld the original judge’s ruling due to a lack of evidence demonstrating that the money from the mother to the son in 2005 was intended as a loan rather than a gift.

To be clear, if this evidence had existed, this would have overridden the presumption of advancement. This evidence could have been something as simple as a hand-written agreement or IOU between the mum and her son.

What makes this case interesting is that provision was made in Section 199 of the Equality Act 2010 to abolish PoA. However, since then, this abolition has not been brought into force as part of UK common law. Additionally, when hearing cases involving PoA, no judge has created a legal precedent by ruling with Section 199 in mind.

The need to create an agreement

As this case demonstrates, it is important to make clear the basis upon which you are providing money to your child. This should be done whether it is a substantial amount to give your child a leg up when purchasing a home, such as in the case highlighted, or is a much smaller amount intended to help them pay some bills at a time when money is tight for them.

It is a great shame the lady making the claim and her daughter-in-law were not able to resolve this matter amicably, particularly given the tragic circumstances under which the claim was made. Unfortunately, this is increasingly becoming the case though, as the number of inheritance disputes increased by 62% year-on-year between 2018 and 2019 according to The Financial Times.

It is also unusual for this case to have come to court too; There is much publicity attached to probate cases. Most though are settled without needing to go to court.

What you should do

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling probate cases. This means they are well-placed to help you get the proportion of the estate you are entitled to. After your initial consultation with our advisors, which is done on a free no-obligation basis, we will match you with the firm that best suits the circumstances of your case.

If you believe you are due a portion of an estate and want to know if you have a viable case, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

A Mini-Guide to Contesting Probate

Posted on by Jonny

Below is a short contesting probate guide. But first, we offer a brief summary of why it matters so much.

Contesting a will can be a daunting and emotionally difficult time for all parties concerned. If you are displeased with the results of a will, you will want to contest probate. However, before you contest a will, there is a certain amount of information that you should know to ensure that you have the best chance of success.

Can Someone Contest a Probate?

You cannot, as a guide to contesting probate, do so simply because you are unhappy with a result. However, your concerns may fall into one of four main categories. Categories, in fact, as grounds for challenging wills. These include the following examples.

  • Lack of testamentary capacity.
  • Undue influence.
  • Forgery or fraudulent wills.
  • The will is invalid.

You may also be able to contest the will if a lack of financial provision goes to a dependant. You can also contest probate if you have been disinherited and have evidence to suggest that you are the heir of the testator’s estate.

Contesting Probate: A Guide

You should file a probate contest to the probate court before the necessary contesting probate time limits. You should file a probate contest up to six months after the probate is granted if you are a filing under the Inheritance Act. However, some grounds allow you to file a contest up to 12 years after the probate.

You should include information such as your relationship to the testator and the grounds you are contesting under. You should also seek legal advice from a lawyer, who can suggest what evidence you may need, advise you on whether you have a strong claim against the current will, and discuss with you the best course of action to establish your claim.

What happens next?

The claims process can take up to a year, and complicated cases can take up to two. Firstly, a solicitor will check if you have grounds to contest the will legally. Moreover, they may take out a caveat to stop the distribution of any of the will’s contents during the duration of the claims process. These last for six months and can be extended for an additional six months if necessary, and if your claims have not been resolved.

Then, mediation and negotiation may be employed in an attempt to prevent the case from going to court. During this, both parties will meet under the supervision of an advisory and unbiased third party who can encourage both parties to discuss their options.

Contesting Probate: Guide to Going to Court

Supposing the claim does not find a resolution. In that case, we’ll go to court, where both parties will give information and a judge will

  • Weigh up the evidence.
  • Decide the successful party.
  • Determine who will pay for the court costs.

Supposing your court case succeeds, the necessary claim’s amounts come from the court according to their judgement.

Regardless, the contesting probate process can be confusing and misleading. However, seeking probate advice and gathering evidence to support your case can clear certain aspects up. Because there’s no reason why your case won’t reach settlement without going to court or causing the least impact necessary to your daily life.

0161 413 8763

7 days a week from 8am - 9pm

Thinking of joining our panel? Get in touch with customer acquisition agency, mmadigital, by completing their contact form and they will get back to you. Digital Agency