In writing this document, we must assign various words to describe a loved one who dies and leaves behind the task of administering a will.
We’ll often use words like ‘testator’ or ‘deceased’ to explain some of the processes and practises around actioning a will.
To you, they are a beloved family member to whom those words don’t do justice, and we always bear that in mind when serving our clients.
Accessibility – Read this article aloud
What to do when someone challenges a will?
By its very nature, carrying out a loved one’s wishes as expressed in their will comes with every kind of emotion – and we will encourage you to put those emotions aside as difficult as that is to do and consider the following:
What are their genuine reasons for their claim? Could it be valid? If not, then we’ll work to do everything possible to defend the rights of the truly intended benefactor. We have succeeded in achieving the best outcome for our clients, against all kinds of claims for many years.
We are also experts in mediation and can help achieve a cost-effective (and stress saving) settlement where appropriate. Resolving the dispute as quickly and effectively as possible will be an absolute priority. We have spoken about this in our contentious probate article.
The term will is in fact, a true reflection of just that, the ‘will ‘of the deceased. What he/she wanted in respect of the distribution of their assets.
To ensure that you deliver the outcome that you know the deceased person genuinely wanted, you must maintain as clear a head as possible and seek legal advice.
The first step is to give us a call before you do anything else.
We’ll take all the relevant information and advise you of the proper next steps. By responding without proper advice, you may significantly reduce the chance of a positive outcome.
A claim could be made for one of the following reasons:
- The person making the claim has doubts about the loved one’s mental capacity or ‘sound mind’ at the time that the will was drawn up by the deceased.
- The person believes they have grounds to contest the will as they believe the will is not valid, for instance believing that the deceased’s signature had been forged.
- If the will IS legally valid, the claimant may believe there is a solid reason why they should challenge it. It could be that the proposed allocation doesn’t seem in line with the intentions of the deceased as expressed during their lifetime.
When the decedent’s estate is divided, it is shared out equally, which is common when multiple children are involved. A beneficiary that has been included in the will, may still feel that they are not benefiting in the way intended against the testator’s intentions. Imagine that an adult son or daughter cared for an elderly relative through their illness or old age, by using their own money or other resources.
Conversely, a son or daughter borrowing money from the parent, and there has not been a deduction of the outstanding amount owed from their share.
In either of these examples, it is easy to see how initially the estate appears to be shared equally, but it still feels unfair or inequitable to at least one of the testator’s intended beneficiaries.
Failing to support the testator’s intentions:
As it is executed, a will is subject to interpretation. Depending on how clear the instructions are, an issue could arise with a family member interpreting the decedent’s instructions completely differently to the distribution stated in the will.
In short, they believe they’ve been left out or sold short by an error of omission.
Such errors could be due to lack of co-ordination of estate documents, or a failure to keep estate plans current with evolving taxation laws – or even family circumstances, such as a divorce, adoption, or birth. Sometimes, a dispute can occur simply because of poor communication between family members or other beneficiaries.
Wrongful acts by an executor or beneficiary during or after the loved one’s lifetime.
When a loved one dies, and the issue of an estate needs to be dealt with, the whole family and their representatives will all start to look at circumstances more closely.
This is the time when questions may arise around the circumstances (or someone’s behaviour) before or after the deceased died. It could be claimed that the loved one was a victim of financial mistreatment at some point. An example would be if a carer convinced an elderly patient to give them power of attorney over their bank accounts. Any malfeasance is likely to become known after death when an inventory of assets is taken.
It could be that the person who applied for the grant of probate – responsible for carrying out the loved one’s wishes – fails in their responsibility to manage money or other assets properly or creates bogus charges or costs in the interest of profiting from their role.
What happens next:
It’s important to understand the process, if a beneficiary or claimant, feels they have the right to present a challenge. The most obvious path is one of court action, but any claimant must have a clear and legal right as a beneficiary, creditor, or other claimant against the estate.
This description includes anyone named as a beneficiary in estate documents or anyone who could have a right to claim against the estate if the will was found to be invalid or non-existent.
So if the deceased intended to exclude a direct family member from an inheritance, but they didn’t make that clear in estate documents (such as a will) then that family member’s case could be heard in probate.
A key requirement before a court hearing can be instigated is sound evidence that the terms of the estate plan such as ‘beneficiary designations’, wills, or trusts – weren’t valid in some way. This evidence may be medical records documenting a testator’s mental incapacity at the time of making the will, or proof that the testator was a victim of coercion or fraud in the management or disposition of their assets.
If a later will or trust were to be discovered, this could form the ‘proper evidence’ that pre-empts an older document. A common issue is where a will wasn’t signed or properly executed, which means that the estate could be distributed according to an earlier signed document or
under the rules of intestacy.
The importance and value of mediation.
It is often possible to resolve disputes and disagreements with proper mediation outside of the courtroom. By using a trained mediator, the parties show willing to avoid a court hearing. The mediator is not permitted to give legal advice, however, and you should always call on the
support of trained solicitors when entering into mediation.
Where confidentiality is valued, mediation is a good option to protect all parties and ensure their privacy during a very difficult time.
Our advice to families to prevent the above issues:
We recommend that families maintain a good level of communication and understanding between family members before a loved one dies. A written document such as a will is open to interpretation, but the risk of disputes and misunderstandings is mitigated if there is clarity and
consensus ahead of time. This is so important to us as solicitors as we work to reach the right outcome while aiming to protect bonds between family members.
Van Eaton Solicitors are successful ‘contentious probate’ specialists. We are on hand to assist in dealing with a will challenge, in the greater London area – or for select cases within the wider United Kingdom.
Please contact us to learn more about how we can support you in dealing with any probate issue or concern that you might have.
Principal, Van Eaton Solicitors.
Jo Walia is an experienced Civil Litigation, Wills & Probate specialist that serves clients across England and Wales. You can request a no-obligation consultation by getting in touch using the form below.