If nothing is done to protect the bank of mum and dad, there is no guarantee that monies will not be treated as a shared asset in divorce and split with the child’s partner.
Michelle Hayter is a specialist in contested wills and probate, with years of experience in complex and high profile cases. She is recommended for her expertise in the Legal 500, an independent guide to Law firms.
Here, Michelle answers some of the most common questions about contesting wills and probates, and provides some clarity on if a will can be contested, and how.
Can you contest a will?
The answer to this question is yes, if there are grounds to do so.
Whilst someone’s wishes upon their death are of paramount importance, the courts do consider the needs of others known to the deceased who may be disappointed by the contents of the will. It may therefore be possible to make a claim for financial provision from the estate of the deceased.
In addition to this, there may be concerns as to the contents or the circumstances surrounding the making of the will, which invalidates it.
So, what grounds do you need for contesting a will?
Grounds for contesting a will due to validity
The other grounds the court will consider when looking at whether a will is valid include:
- Mistake or error in the drafting of the will.
- If there is evidence that any pressure was placed on the person making the will as to its contents. Do you have suspicions regarding the contents or making of the will?
- Doubts as to the will makers mental capacity or their understanding of the contents of their will or their assets at the time they made their will.
- Proprietary estoppel. Have you been promised an inheritance, acted to your detriment as a result of that promise and then found out that you have been left nothing from the estate?
- The will has not been signed properly or there were not the required number of witnesses present.
Is it hard to contest a will?
The answer to this question will depend on the facts of each individual matter. We offer a free, no obligation initial consultation and can advise you whether we consider that there are sufficient grounds to make a claim. You can then consider your options.
How to contest a will
If we consider that there are sufficient grounds to dispute the validity of a will then we would initially look to settle the claim through correspondence and mediation.
If this is not possible, as a last resort, it would be necessary to commence court proceedings. We can consider various payment options when dealing with disputed will cases including deferring payment until the outcome of the case where the merits allow.
Disputing a will is never easy as we understand that you are grieving a loved one and embarking on litigation. Our team are sympathetic to the circumstances surrounding these types of dispute and can guide you through these stressful times.
Who pays for contesting a will?
The courts have a wide discretion when looking at costs for contested wills. The standard costs awards are:
- Costs can be ordered to be paid from the estate
- The losing party could be ordered to pay the winners costs
- In some instances, both parties will bear their own costs
Can you contest a will after probate?
Yes, you can contest a will after probate has been granted, however there is a strict time limit on claims.
How much time do you have to contest a will?
If you are claiming financial provision then there is a strict 6-month deadline from the date of the grant of probate. If you think you have been left out of a will, but have a financial need that should be considered then the sooner you act the better.
For some other claims such as validity issues, you have a longer period but it is always best to act quickly. We can advise you on time limits in relation to your particular dispute over the will.
Recommended solicitors for Contesting a Will
We are one of a small number of firms in the area with specialist solicitors who are experienced in handling the complexities of disputes. We can help you bring or defend a claim over a will or an inheritance.
Frettens are recommended in the Legal 500 for contentious trusts and probate
“Frettens LLP advises on the enforcement of trusts created under wills, defending claims under the Inheritance Act, and assists beneficiaries and executors with contentious matters regarding the assertion of undue influence on elderly and vulnerable clients with insufficient mental capacity. The firm is also experienced in handling professional negligence claims against solicitors advising on the drafting of wills.” Legal 500 Guide, 2019.
Michelle Hayter is also personally recommended in the independent guide for their expertise in this area.
Free legal advice for contesting a will
We offer a free initial meeting for all clients. Considering whether to contest a will is a difficult decision based on a very complex area of law. Our solicitors are friendly and approachable, and able to explain complex legal issues in clear, easy-to-understand language.
If you’d like to speak to someone, either over the phone or at our bright, modern offices, please don’t hesitate to give us a call on 01425 208315.