How To Obtain Probate In The U.K.
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There are times when there is no alternative other than contesting a will in probate by taking legal action in a court of law. Legal action may involve calling the validity of the document into question or may relate to a claim from a dependent or some other potential beneficiary who was inadequately provided for. In certain circumstances the appointment of an executor, administrator or trustee can also be challenged by litigation. As always in regards to legal action there are time limits and there should be no delay in seeking legal advice and taking action once a potential dispute has been identified.
A will is only valid if it complies with the technical requirements of current probate legislation and case law and if it fails to do so it can be contested in court and thereafter may be deemed to be invalid. Successfully contesting a will in probate usually means that an earlier will takes precedence or where there is none the intestacy rules will apply ensuring that the beneficiaries are those relatives outlined by law or where there are no such beneficiaries the estate is forfeited to the Crown. There are also certain circumstances where only particular clauses are challenged leaving the main part of the document intact and valid.
Legal action for contesting a will in probate is most often instigated as a result of a failure by the testator to ensure that the will was validly executed. It is possible to take legal action if the document does not satisfy the following technical requirements :-
Only those people over the age of 18 years are entitled. This is a basic statutory requirement and wills by those under 18 years old at the time of execution will simply fail.
It must be made of the testators own free intention without unfair influence or threats of physical violence or force from an interested person who may or may not be a beneficiary.
The person executing the document must not be mentally incapacitated, either permanently or temporarily, at the time and must be of sound mind and fully aware of the meaning of the document. Provided that the person is of sound mind at the time of execution, subsequent mental illness or senility will not affect the validity of the will.
It must be signed or the testators signature must be acknowledged, by the person making it in the presence of two witnesses who are in each other presence and in the presence of the testator, and the two witnesses must also sign the will together at the same time.
The witness should not also be a beneficiary or they will lose their own inheritance. The other bequests remain valid in this situation however the failed bequest may be claimed by the Crown if it is not validly distributed in the will to other beneficiaries.
A lost will is fertile ground for lawyers contesting a will in probate. It is often the case that a will is allegedly ‘lost’ when in fact it has been physically destroyed by the testator with the intention of revoking it whereas copies may remain which become the basis for legal action by a miffed potential beneficiary. If a will is truly ‘lost’ or is accidentally destroyed then it is still valid however it is incumbent on the person taking the legal action to prove in a court of law that the missing will does not represent a clear intention by the testator to deliberately revoke it by destruction. An attempt to prove the validity of a missing will is often challenged by the beneficiaries of an earlier will who have been missed out of a later will which would predominate if the later will is deemed to have been deliberately revoked by destruction. Even where there is no earlier will it may be that the intestacy rules which determine who should receive a deceased assets and property when there is no will may favour others who were left out of the disputed will thereby encouraging them to contest the document.
Most lawyers will deal with these matters on a no win no fee basis and the legal charges are often, win or lose, in any event, awarded from the estate provided that the claim has a reasonable basis and is not speculative or an abuse of the courts process. Contesting a will is not a simple matter and inevitably detailed evidence supported by witnesses or documentation will be necessary to prove a contested claim. Legal costs can be high and it is recommended that action is not taken unless it is funded on a no win no fee basis. If several solicitors turn a case down on a no win no fee basis you should seriously consider whether or not you should be risking your own cash on such a venture. The mere fact that a will has been initially drafted by a solicitor is no guarantee of its adequacy although there are far more disputes revolving around do it yourself wills than those that have been professionally prepared.
One of the most common areas for contesting wills, after disputes in regards to valid execution of the document relates to inadequate provision for those who are legally deemed to be dependents. A testator must make adequate proviso for dependents failing which a dependent (of any age) may make application to the court to have the will changed to ensure that adequate provision is made for that persons needs. This most often occurs in regards to disabled or illegitimate children.