Will & Inheritance Dispute FAQs

A will can be challenged by anyone who benefits under an earlier Will. If no earlier Will exists, any person who would benefit under the intestacy rules can bring a challenge.

For a Will to be valid, it must be signed and dated, in writing and witnessed in the presence of two adults who aren’t beneficiaries. 

To make a Will, you must be over the age of 18 and have mental capacity. You need to understand the nature and effect of a Will, know your assets and how they’ll be distributed after your death and who may expect to benefit from your Will. You must truly understand the terms of the Will that you make and it must represent your own wishes (not someone else’s). If you’ve been lied to or convinced to make the Will, it could be invalid. 

While homemade Wills can be problematic and easy to contest, even those prepared by professionals can be open to challenge.

The validity of a Will can be challenged on the basis that the person making it:

• failed to sign
• failed to have it witnessed properly
• didn’t know or approve its contents (they may not have truly understood its contents or effect)
• had some form of undue influence exercised over them (such that the Will didn't reflect their intentions or wishes)
• didn’t have the mental capacity to make a Will (usually due to a medical condition).

If a Will is found to be invalid, the prior Will — properly executed by the deceased — will be the one that is valid and acted on (so long as that Will hasn’t been separately revoked).

If no prior Will exists, the intestacy rules will apply.

This depends on the type of claim you may have, so it’s best to seek advice as soon as possible. Strict time limits apply to certain claims, whereas others have no time limit at all.

If you have concerns over the validity of a Will, you may be entitled to enter a caveat against the estate before the Grant of Probate is issued. 

This is something that we can do for you while we investigate your claims.

The Court has a discretionary power to terminate the appointment of an executor or appoint a substitute. However, it will not do so lightly — evidence is required to show why the executor is unsuitable to continue in the role. 

Our contentious probate team can advise on exactly what’s needed and help you to gather and present the required proof.

Executor duties are defined by legislation and include the following:

• Making funeral arrangements.
• Preparing a complete list and valuation of all the testator's assets and liabilities.
• Protecting all assets of the estate against theft, fire, loss and any other destruction.
• Advertising for creditors of the estate.
• Paying all outstanding debts — including funeral expenses, estate administration expenses and taxes — before distributing the estate to the beneficiaries.

The cost of contesting a Will varies from case to case, depending on the circumstances, the volume of documentary evidence and number of potential witnesses.

Once we have a full picture of the facts and the potentially available evidence, we’re able to provide an accurate estimate of the costs that might be incurred at each stage. 

We pursue cases on a step-by-step basis and ensure that our clients aren’t incurring legal fees unless they have a good case to pursue. Our clients are fully informed at each stage to enable them to make informed decisions about their case.

It’s often misconceived that in inheritance disputes, legal costs are automatically paid out of the estate. This isn’t necessarily true, as the usual rule in court proceedings is that the losing party pays the winning party’s costs. However, it’s unlikely that a judge will award a party 100% of their costs back. 

As the costs rules are complex, it’s vital that you take advice from experts in this field of law.

It’s also important to remember that many cases don’t reach the stage of court proceedings — and even if they do, over 95% of such cases are resolved before they reach a fully contested trial in front of a judge.

The payment of costs depends on a number of factors, including:

• the type of claim
• the conduct and position adopted by the parties
• whether one of the parties has succeeded over the other.

However — as a general rule — the losing party pays the winning party’s costs, subject to the assessment of those costs by the Court as to reasonableness and proportionality.

Since any litigation comes with an element of risk, we’ll discuss with you whether you wish to take out an ‘after the event’ insurance policy to cover the payment of any adverse costs awarded against you should the claim be unsuccessful.

We’ll discuss funding options with you and explore the best way to fund your case, to meet your needs in your particular circumstances.

Usually, the residuary beneficiaries need to deal with these claims. However, executors also have responsibilities, such that they may also need to take independent legal advice and representation.

We regularly act for other lawyers who are appointed in a professional capacity to administer an estate — whether as the named executor in a Will or as a court-appointed independent administrator.

A range of claims can be made to ‘contest a Will’. The full factual history needs to be understood before someone can be advised about the potential claims that they may be able to pursue.

For example, a claim can arise where:

• the deceased made promises that haven’t been fulfilled
• the Will doesn’t leave you anything (or enough) 
• lifetime gifts have been made, which mean a beneficiary then receives more than their fair share
• there’s reason to believe that the Will may not have been validly made.

There are formal requirements that apply to Wills. If a Will hasn’t been properly signed and/or witnessed, it won’t be valid. The person making the Will must have the necessary level of mental capacity, truly understand the terms and effect of the Will and been acting of their own free Will. 

A Will can also be invalid if it has been made as a result of ‘a poisoning of the mind’. This is where lies are told that convince the person making the Will to disinherit someone or leave them less.

It’s best to challenge the validity of a Will as soon as possible after a person has died. 

If you have concerns over the validity of a Will, you may be entitled to enter a caveat against the estate to prevent the Grant of Probate being issued. Entering a caveat will allow you time to undertake investigations regarding the circumstances in which the Will was made.

However, if you haven’t entered a caveat, it’s still possible to contest a Will even after the Grant of Probate has been issued.

Since strict time limits apply to certain types of claims, it’s important to seek legal advice as soon as possible.

The type of claim you pursue — or the basis on which you’re challenging the Will — will determine what evidence you’ll need.

We can guide you through the process, gather and review the evidence and give you expert advice on the merits of your arguments.

Attorneys (usually appointed under a Lasting Power of Attorney) and deputies (appointed by the court) have a duty to act in the best interests of the person they’re assisting. They must keep proper records of financial transactions and dealings and can be called on to provide an explanation of any suspicious dealings.

The powers that attorneys and deputies have can be removed by the court if misconduct — or even just innocent mismanagement — is proven.

We have extensive experience of representing concerned family members, as well as other legal professionals in such cases.

Claims should be issued at Court within six months of a Grant of Probate being made. While there is the ability to ask the Court to extend this deadline in certain circumstances, it’s sensible to ensure that claims are progressed as soon as possible and brought within this six-month period for the best chances of success.

The intestacy rules are set out in legislation and explain who is entitled to take out the Grant and who receives the estate if the deceased didn't leave a Will.

A caveat is a document lodged at the Probate Registry to prevent a Grant of Probate being issued. It’s used when the validity of a Will is being challenged or when there are concerns as to whether an executor is a suitable person to administer an estate.

In predatory marriages, the perpetrator often isolates the victim from family and friends and arranges a marriage, which may take place in secret.

Since marriage creates significant legal advantages for a spouse, it can be used as a shortcut to financial gain — whether the benefit occurs during the lifetime or upon the death of the vulnerable party. 

Unless a Will is stated to be made in contemplation of marriage, a marriage will automatically revoke any previous Will. This often results in the new spouse inheriting the majority (if not all) of the vulnerable person’s estate. 

The consequences for disinherited family members can be devastating. Sadly, the new spouse can also gain control over the funeral arrangements and exclude the family.

Financial abuse often involves a trusted person treating another’s money as if it’s their own. 

This can range from using their bank card to transferring large sums of money (or even property) for the benefit of themselves or people connected to them.

One form of financial abuse is known as predatory marriage.

A ‘lifetime gift’ is what it sounds like — a gift of cash or property made by one living person to another.

There are various reasons why a person may want to make lifetime gifts, with the majority of people opting to do so for tax and estate planning purposes.

However, if the reasons behind the gift aren’t properly documented, this can lead to a dispute after death about whether the gift was legitimate.

Lifetime gifts can be challenged on the basis that the person making the gift:

• made a mistake
• didn’t have the requisite mental capacity to make the gift (due to a medical condition, such as dementia)
• was influenced or coerced by another into making the gift.

Typically, the victims of financial abuse are elderly or infirm and unaware or unable to understand the true extent of the abuse. Sometimes, they’re dependent on their abuser and as such can be reluctant to raise or acknowledge concerns. 

While the most obvious form of financial abuse would be the misuse of money — another treating the victim’s money as if it was their own — the victim may be coerced or pressured into making decisions about their assets to the benefit of the abuser. This can include making changes to a Will or various and often substantial lifetime gifts.

Sadly, financial abuse isn’t always apparent until after the death of a victim, when steps are taken to administer the Estate. It’s then that the true extent of the abuse becomes evident.

We’re often instructed by clients in these instances. The legal principles are complex and our expertise can be vital in ensuring that all available investigations are completed and the merits of any case properly understood.

It can be difficult to prove financial abuse — particularly where the abuser has legitimate access to a victim’s assets. For example, where they are an account signatory or have authority under a Lasting Power of Attorney. 

Since the ‘abuser’ is usually someone in a position of trust — such as a family member, ‘friend’ or carer — financial abuse can be difficult to identify. 

In most cases where financial abuse is suspected, a report would usually be made to the police and bank (if appropriate) so that investigations can be carried out. It may also be necessary to make a report to Social Services and the Office of the Public Guardian where the abuser is acting under a Lasting Power of Attorney or Deputyship Order. 

It’s easier to obtain proof of the abuse where the victim remains living, as (for example) they’ll be able to provide direct evidence regarding any unauthorised or suspicious transactions. This may include obtaining bank statements and witness statements. 

Where a victim has died, things can become complicated due to strict data protection and disclosure rules, which can be difficult to navigate. 

We have expertise in investigating and dealing with allegations of financial abuse.

According to Age UK, financial abuse is the “mistreatment of someone in terms of their money or assets, such as their property”. This includes situations where monies are being stolen, misused or access to assets are being restricted. 

While financial abuse can take many forms, it often arises where the victim is being assisted with aspects of daily living, such as shopping or care services.

The most obvious signs to look out for are: 

• unusual or unexplained bank transactions 
• frequent cash withdrawals
• bank accounts and money being restricted or new authorised signatories 
• sudden or unexpected changes to a Will or Lasting Power of Attorney
• large, unexplained gifts 
• isolation from family members and friends 
• change in living conditions and behaviour, particularly in relation to money 
• increase in gifts or money to a particular individual or group of people.

Undue influence is when a person convinces or coerces someone else into doing something they otherwise wouldn’t do, if they were acting of their own free will.

This can lead to lifetime gifts or a Will being made or changed to benefit the person exercising the coercion.

You may suspect undue influence if a loved one has made a gift which is out of character, has changed their Will in a way that’s inconsistent with previous Wills or you believe that it doesn’t accurately reflect their wishes. 

You may also have concerns if the deceased was ill or frail at the time the gift or Will was made, if a person benefiting under a Will wasn’t included in previous Wills or they were due to inherit a lot less.

If a gift is made as a result of undue influence, it can be set aside and is liable to be repaid.

If a Will is made as a result of undue influence, it’s invalid and the deceased’s estate will fall to be distributed under a previous Will or the rules of intestacy.

Challenging a gift or Will due to undue influence can be complex. Often, a person exerting undue influence on another does this in private, behind closed doors, without anyone else around. 

We have expertise in investigating, identifying evidence which may point to undue influence, understanding the merits of a case and presenting it in its best possible terms to achieve the most favourable outcome.