If you are deciding whether or not to contest a Will, there are certain practical steps and tips you can consider beforehand.
Before commencing any challenge to a deceased’s Will or intestacy, consideration should be given to the status of their assets and liabilities.
It is rare for an estate to be straightforward, and increasingly common for practical issues to be overlooked.
The most important step is to establish whether a Grant of Probate or Letters of Administration has been obtained.
A Grant will appear on the probate government website known as probatesearch.service.gov.uk and should be obtained.
There are various types of Grants, and advice should be obtained as to their correct meaning.
Understanding the executors or administrators (known as the personal representatives) of the estate is crucial, along with their intentions with respect to the Will and estate administration.
If a dispute is contemplated, early communication and cooperation can greatly assist and save costs.
Tip 1 - Have you seen the Will?
A Will is a private document until it is sent to the Probate Registry. It will then be listed on the Government's website.
At this point, it becomes a public document and can be downloaded along with a Grant of Probate.
You will not be able to view the Will beforehand unless the executor(s) have agreed that you can. This is because a Will remains in the control of the executor(s).
It is important to consider the terms of the Will before embarking upon any potential claim.
It is not unusual for family members to speculate about the content of the deceased's Will without having seen what it contains.
This can create unnecessary confusion and anxiety. A Will does not need to be formally "read out" by a solicitor.
Knowing whether the Will is a copy or the original is also important. Only the original Will can be sent to the Probate Registry, so it is crucial to know where this is.
Many people leave their Will with a solicitor for safekeeping, but if you only have a copy, you must be careful as it may have been changed and updated.
Most Wills are drafted in language that is hard to understand or interpret. A solicitor can assist in helping you comprehend the terms of a Will and what it means to you.
They can also assist in obtaining the Will and identifying any potential claims you may have.
Tip 2 – Act quickly and protect your claim
In the early stages of investigating a claim, it will be important to ensure that an executor does not obtain a Grant of Probate.
A Grant will enable an executor to distribute an estate - not what you want when trying to investigate a challenge!
To help, you can apply to the Probate Registry for a caveat to be entered against the deceased's name. A caveat can be used to notify the Probate Registry that you have concerns about the validity of a Will.
This can be dealt with online through the Probate Registry website. The application can be made instantly and will "block" any Grant application that is subsequently made.
A caveat application can be made without notifying anyone, which can be helpful if family tensions exist. However, you need to have what is known as an "interest" in the deceased's estate for it to be effective.
A solicitor can discuss this with you as well as submitting an application on your behalf. A successful application will last six months, after which it can be renewed.
Lodging a caveat will be essential if you are considering a challenge to the validity of a deceased Will. It can bring the Grant application to a halt and ensure the preservation of the estate assets in the meantime.
Acting quickly is essential for other reasons. This is because different time limits apply to certain claims. It is important to ensure that you act quickly and contact a solicitor if you think you may have sufficient grounds to claim.
Notable time limits are:
- Inheritance Act claim: 6 months from the date of Grant.
- Rectification claims: 6 months from the date of Grant.
- Validity of Will claims: No specific time limit, but advise above as soon as possible.
- Claim based upon a deed: 12 years
Tip 3 – What did the deceased have to leave?
When a person dies, their assets and liabilities become known as their estate.
The estate's value will depend upon what is left after payment of debts, tax, funeral and estate expenses.
As with people, some estates are cash-rich and asset-poor, others the complete opposite.
Some estates will contain property; if so, it will be important to understand whether the property forms part of their estate.
Quick and easy searches can be undertaken with the Land Registry to obtain the title deeds for the deceased's property.
Understanding how the deceased owned property, particularly if they have a co-owner, will be crucial.
Consideration should be given as to whether the property may have been held jointly with another person.
If so, it does not necessarily mean their "share" will form part of their estate.
A solicitor can advise whether or not the deceased's property forms part of their estate.
This may be crucial in deciding whether it is financially viable to bring a claim.
Tip 4 – Legal fees
Probate claims are complex, and aside from navigating the law and legal procedure, they often arise at a highly emotional time when feelings of loss and grief are at their foremost.
Incurring legal costs at this time adds another concern, so it is important to explore funding options to assist you in bringing a claim and what this means for you.
Most contentious probate claims can be resolved before costs escalate or claims reach trial.
Finding a solicitor that can discuss this with you, guide you and give clear and transparent information about costs is essential.
At Myerson, we have various pricing options that we can discuss with you – these can be tailored to your matter and could include a fixed fee, No win, No Fee, Deferred Fee or hourly rate.
Our highly experienced team assesses each matter individually and is regularly updated according to any change in your case or personal circumstances.
Other considerations should be:
- The value of the estate - when was the property last valued? Is there still a mortgage or other liability?
- The location of estate assets - are they all in England or Wales or abroad? Are any being occupied or rented, and if so, under what terms?
- The implication of jointly owned property - have assets passed outside the Will, and if not, what share did the deceased have and with whom?
- The effect of tax exemptions and other reliefs.