FAQ

Frequently Asked Questions (FAQ)

Minors have the same rights as adults and are able to commence claims and defend claims against an estate. As a minor, they are unable to participate without a “Litigation Friend” being appointed by the Court to act on their behalf within proceedings. A Litigation friend has a duty to the minor to act in their best interests, which will often include seeking legal advice and liaising closely with the minor to ensure that they understand the progress of a case.

A Will can be challenged after a Grant of Probate has been obtained. However, a Claimant under the Inheritance (Provision for Family and Dependants) Act 1975 has 6 months from the date of the Grant to issue their claim. It is possible to bring a claim after this date, but the applicant will require the Court’s permission to do so, and will need to persuade the Court that there is good reason for not having complied with the 6 month deadline. Permission is not guaranteed, and it is better to bring the claim within the 6 month window if at all possible.

It is also prudent to bring your claim (whether that be a claim pursuant to the 1975 Act or a challenge to the Will) or at the very least put the Executor / Administrator on notice of your claim, within 6 months of the date of the Grant, because following the expiry of that 6 month period, an Executor / Administrator is able to legitimately distribute the Estate monies and conclude the administration of the Estate. Whilst monies distributed can potentially be clawed back into the Estate if a claim against the Estate challenge to the Will is successful, it is not always a straightforward task and it may not be possible to recover all of the monies distributed.

An executor appointed by a Will can also be a beneficiary under that Will. In fact that is very often the case and in straightforward estates does not tend to present any difficulty.

Conversely, the role of an executor and beneficiary can conflict. For example, if a dispute arises, whether it be a challenge to the validity of the Will, or a claim brought against the estate, an executor should remain neutral in their position in order to retain any costs protection and to therefore have an ability to recover from the estate any reasonable costs expended by them as executor.  

It may, however, be that an executor who is also a beneficiary wishes to defend any such claim. Alternatively, by reason of the nature of the claim a beneficiary may be forced to defend a claim if allegations are made against them personally (i.e. in undue influence claims). In those circumstances it is often necessary for an independent personal representative to be appointed in place of the executor, who will often be a professional person such as a solicitor.

In order to challenge a Will you should consider your position and how you will be affected should the Will be declared invalid and consequently be overturned.

If a Will is found to be invalid, then (if they have one) the Testator’s previous Will will instead take effect (provided that Will is not also capable of being challenged and overturned). If the Will is found to be invalid and there is no previous Will (or a previous Will is also capable of being overturned) then the Intestacy Rules may apply.

When considering challenging a Will you should therefore assess your position and how you will be affected should the Will be declared invalid, so that you understand whether, in bringing any claim, you stand to achieve any benefit. Ordinarily, a person seeking to challenge the validity of a Will does so either because they would benefit from a previous Will, or, in the absence of the any such previous Will, because they would benefit from the Intestacy Rules.

The class of people that may contest a Will includes a beneficiary of a current or previous Will of the Deceased, a person affected by a current or previous Will, an individual related to the Deceased or someone who is dependent upon the Deceased.

In order to contest a Will you should undertake a document gathering exercise as follows:

  • Obtain a copy of the Will if available. You should be aware that a Will is a private document until such time as probate is extracted. That being the case, if probate has not yet been obtained then the Executor is not obliged to release it to you.
  • Understand if there were any previous Wills and if so the effect of those Wills.
  • (And if prior to the Grant of Probate being obtained) if the current Will incites any suspicion as to its content/provision made/drafting then you are able to enter a caveat at the District Probate Registry seeking to prevent the Executors obtaining a Grant of Probate. This can only be done if you are seeking to challenge the validity of the Will. If a caveat is entered because you wish to bring a claim for reasonable financial provision pursuant to the 1975 Act, then this is considered an abuse of process.
  • You should then send a Larke v Nugus request to the draftsperson (if a professional draftsperson was used) asking questions about their instructions taken, the circumstances in which those instructions were taken and their perception of the Testator.
  • It is also prudent, if possible, to contact and take accounts from anyone involved with the Will, such as witnesses to the Will, close family members or friends.
  • If there are any concerns about the Testator’s mental capacity when instructing upon and executing the Will then you may also wish to obtain medical records for the Testator in order to understand whether there were any capacity issues recorded by their GP or hospital records.
  • Once you have the documentation set out above, if you still have concerns about the validity of the Will, then your solicitor can prepare a letter to the Executor/s setting out your concerns, by way of a letter of claim. Pre-action discussions may then commence.
  • If those pre-action discussions do not prove fruitful, then it may then become necessary to issue a claim at Court seeking to challenge the validity of the Will.

Firstly, are you a beneficiary of the estate?

If yes, then you are able to make an application to the Court for an Inventory and Account under section 25(b) of Administration of Estates Act 1925. This is a process that forces an Executor to provide a full inventory of the estate and a full account of the estate funds. Executors have a duty to provide an Inventory and Account when requested to do so and can face criminal prosecution by failing to do so.

If the Executor has or continues to act contrary to their duties as an Executor, then you may consider making an application pursuant to Section 50 of the Administration of Justice Act 1984 seeking their removal as Executor. You may apply to become the Executor in their place should you have the appropriate standing to do so.

There are a number of options available to you depending upon the reasons why you may have been left out of your Mother's Will.

One option available to you may be able to challenge the validity of your Mother's Will. This can be done for a number of reasons, for example, if you suspect that the Will does not meet the formal legal requirements under Section 9 Wills Act 1837, there are grounds to suggest that your Mother had been influenced in some way, or if you have doubts as to your mother's capacity at the time of making the Will. By making an application to challenge the validity, you would require the Courts to decide upon whether or not the Will is valid. This is known as pronouncing a Will in solemn form.

Another option available to you is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is a piece of legislation that allows a certain category of person to make a claim in the estate for financial provision. If you were financially dependant on her, and have been left out of her Will, call one of our expert advisors to see if you are eligible for a claim.

You may want to consider making an application pursuant to Section 22 and 23 of the Mental Capacity Act 2005. That application would enable your brother to be removed from his position should it be found that he has acted in breach of his powers. Please call one of our expert advisors if you need further guidance.

Firstly, were you living with them and were you financially dependant upon them?

If yes, then you may have a claim in their estate under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows a cohabitee of two or more years and/or someone who was financially dependant upon the Deceased to make a claim for financial provision. The courts weigh up a number of factors when deciding upon financial provision. If you think you may have a claim, call one of our expert advisors who can guide you every step of the way.

There are certain legal technicalities which a Will must comply with in order to be valid:

  • Was the Will in writing?
  • Was the Will signed by the Testator or a person directed by the Testator to sign on their behalf?
  • Was the signature made or acknowledged in front of two witnesses present at the same time?
  • Did the witnesses sign the Will in the presence of the Testator?
  • If a witness is also a beneficiary named in the Will then this would not invalidate the Will itself, but would result in the gift to that witness-beneficiary failing.

Mental capacity

  • Was the Testator of sound mind or is there evidence of a medical condition that interferes with their ability to understand the nature of the act of making a Will?
  • Was the Testator suffering from a disorder of the mind that may influence their decision making process which is not in keeping with their rational self?
  • Did the Testator understand the consequences of including or excluding individuals under the Will?

Knowledge and Approval

  • Was the Testator aware of the contents of the Will and approved them?
  • Is there any language barrier to consider?
  • Are there any suspicious circumstances or unusual gifts?

Undue Influence

  • Was the Testator pressured into making the Will or changing a Will?
  • Influence over the Testator is not in itself sufficient the influence must be “undue”.
  • Is there any other reasonable explanation for the Testator’s actions in making the Will?

Fraudulent and Forged Wills

  • Does the signature of the Testator seem different from normal?
  • Is there any explanation for a variation in the signature, for example: illness?
  • Has the Testator been subject to lies that have poisoned his mind about another?

A Grant of Representation is a document that is needed to prove a person’s authority to administer the Estate of a deceased person. A Grant of Representation is obtained by making an application to the Probate Registry. If there is a Will, then the Executors will need to apply for a Grant of Probate. If there was no Will, then the estate is administered in accordance with the Rules of Intestacy and the deceased’s next-of-kin will apply for a Grant of Letters of Administration.

Fairly regularly, a Will will create a trust. The Will will also name Trustees. The role of the trustee is then to receive the assets that have been left to the trust and then manage and distribute that asset for the benefit of the beneficiary and in accordance with the terms of the Trust. The trustee must also act in accordance with trust legislation which imposes a statutory duty of care.