Carter Lemon Camerons’ Private Client team can assist clients of all shapes and sizes who wish to challenge a Will, or believe that they may have grounds to contest a Will.
Our contentious probate solicitors can advise on both protecting and challenging a Will, including all kinds of Inheritance Act Claims under the Inheritance Act 1975.
Protecting a Will
Freedom of testamentary disposition has long been a central pillar of the English law of succession. If you are of sound mind, are aware of and understand what you are signing and do so without influence or under duress, then you can dispose of your estate as you wish.
This is subject to the overriding provisions of the Inheritance (Provision for Family & Dependants) Act 1975, which applies to the estates of those who die domiciled in the UK.
The Act identifies a class of protected persons who may have grounds to contest a will and be able to claim reasonable provision if the impact of a contested Will, intestacy or the law of survivorship fails to achieve this.
These include a surviving spouse, a former spouse, a child, any person treated by the deceased as a child of the family, those who were maintained by the deceased immediately before their death and, since 1 January 1996, those who were living under the same roof as husband and wife for a period of two years immediately prior to the death.
Claims under the Inheritance Act 1975 by a surviving spouse generally extend to such provision as might have been made had the marriage ended not on death but in divorce; other claims are for such provision as is reasonable for maintenance. In short, there are many reasons a person may wish to challenge a Will, or believe they have the grounds to contest a Will.
So, can you ensure that your Will is not going to be subject to challenge after your death?
First and foremost, a Will must meet a number of requirements. It will need to be signed in the presence of two witnesses who must both be present at the time. A professionally drawn Will will always contain evidence of compliance with this requirement and this creates a presumption of validity at this basic level. Those taking instructions will also satisfy themselves as to capacity and, if there is any doubt, will seek a second opinion from the medical profession. Confirmation that these steps were taken prior to the execution of the Will will reinforce prospects of the Will surviving any challenge post death.
Equally, a statement (either in or ancillary to a Will) explaining the reasons for its contents and the absence of any provision for a particular potential beneficiary can serve as a first line of defence to a prospective claim under the Inheritance Act 1975 challenging a Will, as well as providing evidence of any lifetime gifting which might have made further provision on death unnecessary or inappropriate.
So far, so good, one might think.
Experience suggests otherwise…
The increase in the value of estates has created incentives to contest or challenge a Will which, while such claims might only be nuisance value, can nonetheless result in a worthwhile settlement as those affected seek to avoid the delay and expense of defending a claim. Forgery and fraud are not uncommon. It is not unheard of for signatures on Wills to be applied falsely and in circumstances where the purported testator is oblivious to what is being done. It is also suspected that Wills which may be unpalatable to those adversely affected are simply destroyed and their provisions replaced either by the intestacy rules or a more favourable earlier Will.
Simple precautions must include:
- Instructing an experienced contentious probate solicitor to prepare what is one of the more important documents you will ever sign;
- Making sure the contentious probate lawyer keeps a detailed note of the points discussed. Do not be offended if there is any discussion about capacity or a suggestion of a second opinion – this is being done for your protection;
- Ensuring that the original Will is kept under lock and key, preferably by the solicitor who drafted it and keep it under review;
- Developing a relationship with your contentious probate solicitor so that he or she is aware of your circumstances and priorities and can provide answers to any questions which arise when the Will is put into effect – or challenged;
- Keeping any copy of your Will confidential and avoiding discussing it – even with those who stand to benefit. It is a private document and should remain so in your lifetime.
Challenging a Will
Experience of how Wills should be drawn up and applied also provides a basis for knowing when and how to contest or challenge a Will.
If you have come to expect to inherit and, for no obvious reason and apparently through no fault of your own, you do not, it is perfectly possible that you have lost out as a result of the activities of those who have procured a larger share of the estate at your expense. Wills executed late in life which contain unexpected provisions will often attract the Court’s suspicion if the circumstances in which they were executed are properly explored.
You may have maintained a close relationship with a relative who in turn has been subjected to a constant stream of false accusations about you, such that he or she starts to believe them to be true. They may then give instructions for a Will to be drawn up, reflecting the false picture which has emerged. Those instructions, taken in good faith, can very easily result in a Will which even the professional person who drafted it believes represents an accurate and sincere reflection of the client’s wishes. Such a Will could very will inspire claims under the Inheritance Act 1975 led by those who believe they have grounds to contest a Will in the above circumstances.
So do not take anything at face value. If it seems wrong, then there is a distinct possibility that it is and you should seek advice on what steps are available to right a wrong which will otherwise not go remedied and will impact severely on you and your family in the years to come. You may have the grounds to contest a Will and, if so, our contentious probate solicitors can help you with challenging a Will.
If you fall within the class of persons protected by the Inheritance Act 1975 and do not believe that reasonable provision has been made for you, do not ignore the opportunity of considering a claim.
The concept of a claim under the Inheritance Act 1975 is there for your protection and confers rights which will secure you reasonable provision if the circumstances justify it. Very few such cases lead to trial and the parties are under an obligation to explore opportunities to reach settlement either informally or by way of formal mediation so the daunting prospect of a lengthy and potentially expensive process should not deter you from seeking advice from a contentious probate solicitor in relation to a contested Will.
How we can help
Neil Acheson-Gray has joined CLC after a long career in private client work at many levels. He is a talented contentious probate solicitor who trained at a leading firm in Holborn and then spent 25 years as a partner in the family firm, with offices in Marble Arch and Richmond. This gave him a wealth of experience in estate planning, contested Wills, estates and trusts and carrying out the role of Executor and Trustee. Neil has subsequently spent six years with a firm in Fetter Lane, where he successfully developed the firm’s capability to assist clients with contentious probate and challenging Wills, bringing his wealth of experience of private client work to the cut and thrust of claims under the Inheritance Act 1975 and contested Wills.
Carter Lemon Camerons LLP Solicitors is a City law firm which provides Wills and probate services with a personal touch to its clients – that go beyond the simple drafting of documents. Unlike many City practices we are happy to act in smaller private legal matters, bringing the same care and consideration as we do to large commercial matters. If you require advice on Wills, estate planning, the grounds to contest a Will and making or defending claims under the Inheritance Act 1975 please contact Neil Acheson-Gray, Ian West or Michael Woodward.
Contentious probate Q&A
In short, yes, a Will can be challenged if it appears invalid.
Your chances of success will depend on the specific circumstances of the case and the grounds on which you wish to make a challenge.
It is essential to seek specialist legal advice as soon as possible in order to determine whether you have any prospects of being to able to challenge a Will.
There are several specific grounds on which it is possible to contest a Will. These include:
- The deceased’s lack of capacity at the time the Will was prepared
- Lack of evidence that the deceased knew and understood that what he was signing was a Will
- Where the deceased has been unduly influenced in the preparation of the Will
- The Will has not been validly executed or it is a forgery
Spouses, children, cohabitees and dependants who have been left out of the Will or who have received insufficient financial provision under intestacy can make claims under the Inheritance Act 1975.
You can make a claim under the Inheritance Act if you have been left out of the Will or have received insufficient financial provision from the Will and one of the following applies:
- You were married to, or in a civil partnership with the deceased
- You were previously married to or in a civil partnership with the deceased and have not remarried or entered a new civil partnership
- You cohabited with the deceased for two years or more before they died
- You are a child of the deceased, whether by birth, adoption, fostering or as a step-child
- You were maintained from the deceased
If you were married to, or in a civil partnership with the deceased, you may be entitled to a greater level of financial provision than other claimants.
This depends on the grounds you are using to challenge the Will. Claims under the Inheritance Act are subject to a six month time limit after the grant of probate. In contrast, where fraud is suspected, there are no time limits.
In any event, it is advisable to act as soon as possible to give plenty of time to gather evidence and to prepare the case.
However, even if you think that the time has elapsed, it is still worthwhile seeking advice as the courts do have some discretion in relation to these limits.
Meet the team
Ian West is a partner in the Private Client team. He deals with a wide range of matters including commercial and residential conveyancing, will drafting, trusts and probate and powers of attorney.
Private Client Matters
As well as obtaining grants of probate for UK estates, Ian has assisted personal representatives of foreign estates in resealing foreign grants to administer UK assets held by a deceased domiciled outside the UK. He has dealt with resealing foreign grants in jurisdictions as diverse as Holland and Iran. He has also advised on domicile in respect of deceased’s estates and regularly deals with the UK estates of persons who have died domiciled outside the United Kingdom.
Recent property transactions include:-
- Acting for clients on a lifetime mortgage as part of an inheritance tax strategy.
- Acting on behalf of a landowner in connection with the grant of an option for a lease for use of the land for battery storage.
- Acting on behalf of a landowner in connection with the sale of land for use as an electricity sub-station in connection with a wind farm project and grant of options for related easements.
- Acting for both landlords and tenants in respect of statutory claims for extension leases of flats.
Ian was educated at Brentwood School Essex, Manchester University and the College of Law London. He qualified as a solicitor in 1981 and joined Metson Cross in 1982 becoming a partner in 1990.
Ian is married with two children.
As former Honorary Secretary of the Society of Old Brentwoods, Ian takes a keen interest in the affairs of the School and in various events and functions organised by the Society. He is also a keen follower of football and has an interest in classic cars. Ian is a member of the Mini Cooper Register. Ian has also been learning to play the guitar (for over 45 years!).
Michael qualified as a solicitor in 1982 and is a consultant based in the private client department. Michael advises on a wide range of UK and international tax issues. He is a member of the Society of Trust and Estates Practitioners and is an expert on wealth structuring, having been responsible for this area at Barclays Wealth for 13 years. He has also been authorised under the financial services legislation since it was introduced in the 1980s and advises on investment and financial services matters.
Neil Acheson-Gray is a consultant solicitor and part of the private client department. He has specialised in matters including contentious probate for more than three decades.
He trained at a leading firm in Holborn, qualifying as a solicitor in 1983 and then spent 25 years as a partner in the family firm with offices in Marble Arch and Richmond. This gave him a wealth of experience in estate planning, Wills, estates and trusts and carrying out the role of Executor and Trustee.
Neil has subsequently spent 6 years with a firm in Fetter Lane where he successfully developed the firm’s contentious probate capability, bringing his wealth of experience of private client work to the cut and thrust of claims under the Inheritance (Provision for Family & Dependents) Act 1975 and contested Wills.
- Acting for the family of an elderly lady seeking to prove the validity of an allegedly forged or fraudulent Will in her favour
- Acting for several children of a lady whose other daughter was alleged to have forged her mother’s Will
- Acting for a widow whose stepchildren were claiming provision from his estate
- Acting for a widow whose own son inherited all her late husband’s estate
- Representing a child whose siblings were seeking her removal as Executor
- Acting for the beneficiary of an estate in the removal of one of the Executors
- Acting for the surviving partner of the man she lived with who remained married to his wife and left his entire estate to her and he children
- Acting for a surviving husband in relation to a claim made by a friend he had allegedly maintained
- Opposing a Will made by someone who took her own life whilst suffering from serious mental illness
- Advising a daughter whose stepmother left her share in a family property to her nephew contrary to her late husband’s wishes
Alongside this, Neil has continued his established practice in the field of Wills and Probate, dealing with a variety of interesting estates and meeting a wide range of clients from all walks of life, with estates large and small, complex and straightforward.
Neil is married and lives in Surrey. Outside of work he enjoys all forms of sport, travel, cookery, photography and the arts. His greatest inspiration and his greatest critics are his wife, three children and above all his grandson who together provide all the distraction needed from an absorbing and rewarding career which he is pleased to continue at Carter Lemon Camerons LLP.
Neil will shortly turn 70 which is an age when solicitors start to wind down and he is no exception. Neil will remain active working from home dealing with his clients and introducing them gradually to his successors. Neil has a wealth of experience in probate work, both contentious and non-contentious, and enjoys nothing better than advising clients about Wills and Lasting Powers of Attorney.