Consultations in Lymington, London and on the Isle of wight
Tel: 01983 821344


Contested Probate/Inheritance Act Claims

In some countries the law dictates that a share of a person's estate shall be given to various members of their family, including their spouse and children. Similar rules apply under English law only when a person dies without leaving a valid will. These are known as the Rules of Intestacy. Otherwise under English Law people have complete freedom to dispose of their estate as they wish provided they make a valid Will.

Probate is the procedure for obtaining public recognition of the last Will of a person who dies leaving assets in England and Wales. It authenticates the right of the executors and trustees named in the will to assume their roles
The administration of the estate is, in essence, the task of identifying all assets and liabilities, paying all liabilities including Inheritance Tax and then distributing the remaining assets in accordance with the Will or otherwise in accordance with the law.
While seemingly straightforward, administering an estate can be very complex and time consuming. The task of the executors or administrators is onerous and it is important they take good advice to avoid mistakes and in some cases to escape personal liability.

At this practice we do not have a department which either draws wills or acts in the administration of estates but we can recommend our clients to colleagues in a neighbouring firm with whom we work closely and who are specialists in this field.

Contested Probate

Quite often a family member feels aggrieved because he or she has not acquired any benefit under the will of a parent or relative or even a spouse. Sometimes he or she may believe that the testator was not of sound mind when the will was made.

Wills can be contested on a number of grounds. The Will may lack proper formality. The testator may have lacked capacity or knowledge and approval of what he or she signed. The testator may have been 'unduly influenced'.

Undue Influence

It is still not uncommon for a will to be challenged upon the basis that the testator felt 'obliged' to make his will in a certain way. This often happens for instance when someone is very ill and makes a new will shortly before they die perhaps leaving the majority of his estate to a relative who lives nearby or to someone he has seen a lot of just before his illness. The beneficiary may be able to show that he or she was quite innocent of any attempt to persuade the testator to make a new will in his favour and that the testator acted entirely on his own initiative in making the new will and had the capacity to do so, in which case any claim on this ground will fail. On the other hand, there have been many instances where the will of an elderly, frail person made shortly before their death has been successfully challenged.

Inheritance Act Claims

Under the Inheritance (Provision for Family and Dependants) Act 1976 certain persons may claim financial provision from an estate of a person who has died while domiciled in England and Wales. Such claims for financial provision may be brought by a spouse, children and certain other persons including a former spouse, cohabitee or mistress who can show that they were financially dependant on the deceased. The court can order financial provision that is reasonable in the circumstances by the transfer of cash or property to the claimant from the deceased person's assets. Orders can apply to some trusts and lifetime gifts. Claims should be brought within six months of the issue of the grant of representation to the estate.

These claims are often disputed by the beneficiaries under the deceased's will and litigation ensues. It is therefore essential for the claimant to seek specialist advice as soon as it becomes clear that no provision has been made for the claimant under the will.

Specialist advice

This is an area of law which is of particular interest to us in this practice and in which we have an unusual amount of experience.
Ursula Bagnall has successfully represented both claimants and Defendants in a number of contested probate actions and Inheritance Claims throughout her career as both barrister and solicitor. In a case of particular evidential difficulty she represented an elderly client who had been subjected to undue influence and persuaded to make a Lifetime Gift of her home to her son.