Contesting a Will after Probate…
We are regularly asked if it is possible to contest a will after probate has been granted. The short answer is yes you can. However, it really is preferable to seek legal advice and bring any claim at the earliest opportunity, since the recoverability of estate assets (in a successful claim) after an estate has already been distributed, can be problematic and lead to increased costs.
A Grant of Probate is the legal document issued to Executors where there is a will. A Grant of Letters of Administration is the legal document issued to Administrators where there is no will (an intestacy). This document gives the personal representative appointed, the legal right to deal with the deceased person’s property, money and possessions and to distribute their net estate, in accordance with their will or under the intestacy rules (where there is no will).
When a disappointed or disinherited beneficiary state that they wish to ‘contest a will’, they may have any of a number of different claims against an estate. The two most common claims are: –
- A challenge to the validity of the will;
- A claim for reasonable financial provision under the Inheritance (Provision for Family & Dependants) Act 1975 (“1975 Act claim”)
A 1975 Act claim must be issued at court within 6 months of the date of the Grant of Probate (or Letters of Administration, in an intestate estate). Only in exceptional circumstances, can a 1975 Act claim be made outside of this time limit with the permission of the court. A 1975 Act claim is a claim by a disappointed beneficiary (falling with a specific class of potential claimants under the 1975 Act) for reasonable financial provision from the estate. Quite often such claims are brought only after a disappointed beneficiary learns that probate has been granted in an estate.
A challenge to the validity of the will, seeks to set aside the last will through some fault in the circumstances surrounding the preparation and/or execution of the will, in order to resurrect the previous will (if there is one), or for the estate to be distributed in accordance with the intestacy rules (where there is no earlier valid will). There is no time limit within which to issue such claims at court. However, the longer a person waits to bring a claim after probate has been granted, the greater the chance that the estate will have been distributed by the executor to the named beneficiaries under the disputed will. Tracing and recovering the estate assets into the beneficiaries’ hands on a successful claim can be problematic (where the assets have been spent or sold), costly and time consuming. Further, with the passage of time, so increases the likelihood of evidence diminishing; will files and records get destroyed and key witnesses’ memories fade.
Contesting a will after probate has been granted can be extremely complex and therefore it is highly recommended that you seek legal advice.
If you believe that there is reason to contest a will… Talk to Tollers on 01604 258558, our experienced contentious probate solicitors will be happy to discuss things further.