Ask a solicitor for help to avoid Will disputes10.07.2012
A person can choose to distribute their Estate in any way they wish. However, this may not be “the last word”. It is possible for the provisions in a Will to be disputed after a person’s death. This is often referred to as “Contested Probate”. Some of the most common disputes that arise concern the Will itself for example:
- is the Will valid?
- has it been properly executed?
- did the Testator have capacity to make it?
- did the Testator approve and understand the Will?
Other common issues arise both in cases where there is a Will or where the deceased has died intestate, these include:
- do the Will or intestacy make proper provision for dependants?
- has the estate been administered properly and in a timely manner?
- has distribution been made correctly?
Such disputes come at a very emotional time, following the loss of a loved one. This can often make them difficult to deal with and the parties involved can often become entrenched in their positions.
In some cases a Court will make provision for a Beneficiary which differs from those which apply on intestacy or under Will. A common situation is an individual who has not been included in the Will where they might
have expected to because of their relationship with the Deceased, an adult child perhaps.
A claim can be considered under the Inheritance (Provision for Family and Dependants) Act 1975 for the benefit of certain defined categories of applicant.
This type of Claim needs to be made within a strict time limit of 6 months from the Grant of Probate or the letters of administration. Discretion to extend this time limit is only exercised in very special circumstances.
If a claim is made and it is successful the Court will need to decide what “financial maintenance” would be reasonable for the applicant to receive.
Each case is decided on its own facts although the Court will follow particular guidelines set down in the Act and previous cases. The Court will need to look at the needs of the person claiming, the needs of other Beneficiaries and any obligations that the Deceased had towards the person making the application at the time they died. The Court will also look at the size of the Estate. This, of course, is just a snapshot of what will be taken into account. The Court can consider any matter in relation to the case that they feel is appropriate.
If at all possible taking such a matter to Court should be avoided. Every effort should be made to try and resolve the matter with the Personal Representatives and the Beneficiaries. This, in our experience, is the best way forward.
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