Disputing Wills and Estates
Where there is a dispute about a Will or about the way in wich an estate is being dealt with by the executors or administrators, we can guide you.
Questions about the validity of a Will
You may be able to show that a Will is not valid. If so, a previous Will might apply instead or the estate might be distributed as if the deceased had died intestate (without a Will).
- The testator (the person drawing up the Will) must have been able to understand what they were doing, the extent of their assets and the moral rights of any family or other dependants. For example, you might challenge a Will made by an individual suffering from dementia.
- The testator must not be acting under undue influence (eg threats or moral pressure) - though proving that this has happened can be difficult.
- A testator must normally be at least 18 years old.
- The Will must be properly executed - written down, signed and dated, and with two witnesses. Any subsequent amendment to the Will (codicil) must also be properly witnessed to be effective.
- If a witness is also a beneficiary, the Will remains valid except that the witness is no longer entitled to receive anything.
- The original Will is normally required rather than a copy. In the absence of the original, you might be able to claim that the original was deliberately revoked (eg destroyed) or that the copy is a forgery. A Will is automatically revoked (effectively cancelled) by a subsequent Will.
- A Will is also automatically revoked by marriage (or entering into a civil partnership), unless the Will explicitly states that it is made "in contemplation of marriage" (or partnership).
Questions about how the executors are adminstering the Estate
The executors are responsible for distributing assets in accordance with the terms of the will.
The executors normally require a grant of probate before they can release assets to beneficiaries, though this may not be necessary for small estates. If no executor is named in the will, or none of the named executors agrees to act as executor, a beneficiary named in the will can apply for letters of administration, giving them the authority to administer the estate. If there was no will, the deceased's next of kin can apply.
The executors must comply with the terms of the will. However, they are not bound to follow any burial arrangements specified in the will. The will may give the executors some discretion - for example, allowing them to retain property rather than selling it immediately. Any death benefit or spouse's pension payable by a pension scheme is normally the responsibility of the pension scheme's trustees, not the executors of the will. Entitlements will be according to the pension scheme rules, and may be at the discretion of the scheme trustees.
A well-drafted Will should clearly specify what each beneficiary is to receive. Funeral expenses and any debts owed by the testator take priority over any gifts to the beneficiaries. Existing contracts generally remain in effect - for example, if the testator had exchanged contracts for the sale of a house.
Jointly owned property is outside the scope of the will, and automatically passes to the remaining owners. For example, a jointly owned house cannot be included in a will (but if a house is owned as tenants in common, the testator's share can be).
- If the will states that a beneficiary is to receive a particular asset, but that asset was no longer owned by the testator at the time of death, the beneficiary is not entitled to any substitute instead (unless the will explicitly says so).
- If a beneficiary died before the testator, the beneficiary's heirs would not normally be entitled to receive anything (unless the will says so).
- If the testator divorced after drawing up the will, the former spouse is no longer entitled to receive anything under the terms of the will (but may still be able to claim under the rules on dependency). The will is not affected if a couple separate but the divorce has not become final.
- Separate considerations may apply to overseas assets (eg a holiday home abroad), where children may have automatic rights to inherit under that country's laws.
In rare circumstances, it may be possible to have the terms of a will changed if it can be shown that a mistake in preparing the will means that they do not reflect the testator's wishes.
There are a variety of steps you can take if you feel that the executors are acting improperly or that you are entitled to a larger share of the estate. As with most legal disputes, where possible negotiation tends to be preferable to going to court - and legal advice is essential. Your inherita specialist will also discuss how your case can be funded as this is outside the scope of our fixed price service.
Contact one of our specialists today to see if we can help. Please ask for Tom King's Team in the first instance on 01604 258558 or tom.kings@tollers.co.uk
