Contesting a Will: A guide for family members and dependants

By Craig Shipp

There is nothing worse than losing a loved one, someone you have looked up to and depended upon for support. You lose everything they provided to you, and the person you relied upon in times of need. It can be very difficult to come to terms with such a loss.

Once the funeral passes, the healing process begins. You then start to focus on your own affairs and try to bring some normality back to your life only to suffer the upset and disappointment that the deceased has either failed to make any, or any adequate, provision for you in their Will.

What do you do? Can you challenge the Will? What are the grounds for contesting the Will? If you dispute the Will, can you do so after probate has been granted? What are the costs of challenging the Will and what are the chances of success? This blog post aims to provide some general answers to those questions.

However, more specific answers to those questions are dependent upon the individual circumstances of your case but it is something that we, at Bellavia & Associates, can help you with. If you are looking for a supportive lawyer then please call us on 01633 450460 or drop us an email info@bellavia-associates.com if you are not yet ready to pick up the telephone.

Can I claim for financial provision, or for further financial provision, out of the estate?

The Inheritance (Provision for Family And Dependants) Act 1975 defines all those who can make a claim for financial provision, or for further financial provision, out of the estate as being:

· Cohabitees – those who were living with the deceased for around two year prior to their death;

· All children of the deceased regardless of whether they are an adult or not;

· Those who were married to, or were in a Civil Partnership, with the deceased regardless of how shortly before the deceased passed away the relationship was formally recognised;

· All those who have been maintained, financially or otherwise, by the deceased. A former spouse, or ex civil partner, is barred from making a claim unless they can prove that they resumed living with the deceased prior to their death.

The deceased will need to have been living in England or Wales for us to be able to help you make a claim for reasonable financial provision out of the estate.

What are the grounds for contesting the Will?

This post is intended to provide a guide to those who have not been given reasonable financial provision from the deceased’s estate. What this means in practice is an assessment of the financial provision is required of the financial provision made and the financial provision that ought to have been made.

These objective assessments are weighed against factors such as:

· the financial resources of those bringing a claim;

· the financial resources of those likely to bring a claim;

· the financial resources of all other beneficiaries;

· the obligations and responsibilities the deceased had in respect of all of the above;

· the physical and mental abilities of all of the above;

· the individual conduct of all of the above;

· the size and nature of the estate; AND

· any other matter the Court considers relevant.

If you are looking to contest the validity of the Will on the grounds that:

· the deceased lacked the mental capacity to make a Will;

· the deceased did not understand the content of the Will;

· the deceased was coerced into writing the Will; or

· The Will is fake.

Then your claim is dependent upon the evidence you can produce in support of your assertion. Please get in contact with us and we will be able to assist you.

What do I need to prove my claim?

To increase the chances of successfully contesting a Will or making a claim under the Inheritance (Provision for Family And Dependants) Act 1975 you will need to be able to produce evidence is support of your claim.

We will provide guidance on what evidence is required as your claim progresses. However, in general, for claims for financial provision, you ought to get together all documents that prove:

· You were the deceased’s spouse, civil partner, child, cohabitee or otherwise maintained by the deceased;

· Your assets, liabilities and needs for both now and in the future;

· The deficiency in your income, capital or housing need;

· Your means while the deceased was still alive;

· Any means-tested benefits of which you are in receipt;

· All of the assets currently held by you.

Is there a time limit for making a claim?

Court proceedings for reasonable financial provision to be made can be commenced any time before the Grant of Probate has been issued. However, after probate has been granted, you have six months from the date of probate, to have your claim issued by the Court.

For challenging the validity of a Will, the time limit is 12 years from the date of death. If you are uncertain as to which time limit applies to your claim, you ought to seek advice from a firm who has specialist Contentious Probate Solicitors, such as Bellavia & Associates, at your earliest opportunity.

How much does it cost to make a claim? How can I pay for a lawyer?

The cost of contesting a Will or for making a claim for reasonable financial provision depends upon the complexity of the claim.

Once we have full details of your claim, we will be able to estimate the amount of work that is likely to be involved and provide you with details as to how much a claim is likely to cost. We will also provide you with updated costs estimates if your claim becomes unexpectedly more complex.

It is usual in Probate litigation for the loser to pay the winner’s costs and we will always seek to recover your costs from an opponent, or the estate, if your claim is successful.

Bellavia & Associates can offer a range of different option to help fund your claim. The most common method of funding a claim is the traditional pay-as-you-go method where you are charged on an hourly rate. We limit our charges to the maximum that we can pass on to our opponents.

However, in the right circumstances, Bellavia & Associates may offer to defer payment until the end of the claim or offer to fund your claim on a no-win, no-fee basis. We are always happy to guide people during the course of a first free telephone discussion. For further details, please call 01633 450460 or send us an email info@bellavia-associates.com

Craig Shipp is a solicitor with Newport-based Bellavia & Associates.