Contentious probate/ Wills: Do I have capacity to contest and did they have capacity at all?

 It is a true reflection of the litigious nature of today’s society, that we are experiencing a huge increase of incoming work in the arena of contentious probate. Many people do not realize that marriage revokes a will and in cases where no new wills have been made, the children of the marriage assume that all will go to them and are left with an unpleasant taste in their mouths when suddenly, their parent’s estate is left to the new husband or wife in it’s entirety.

So, what do you do when this happens?

Under the Inheritance (Provision for Family and Dependants) Act 1975, an application for financial provision from the estate can be made by the following people: a spouse, civil partner, child, financial dependant or by a person who co habited as husband or wife of the deceased, for a continuous period of two years prior to the death.

The time to make an application is within 6 months of the grant of probate or grant of representation being obtained. However, this is under consideration at the moment and the Law Commission is proposing that applications should be able to be made prior to this.

Under the same Act, an application must be made to the Court and supported by a witness statement which exhibits the grant of probate or representation. Once the Court has received and considered this, there is likely to be a hearing at which a decision will be made as to whether what was left to that person in the will was unreasonable provision in the circumstances.

Similarly to financial provision on divorce, the court will consider making an order to:

• provide a lump sum to the applicant
• make a provision out of the property (if any) of the estate
• provide a monthly maintenance sum from the estate
• vary a nuptial settlement
• for interim support if the applicant is need of immediate financial assistance and if any property can be made available to meet the needs of the applicant.

Although the application process is in itself, fairly simple, there are a number of stringent factors that the court will consider, namely:

•  the financial resources and needs of the applicant and all beneficiaries in the  foreseeable future
• the size and nature of the estate
• any physical or mental disability of the applicant and all beneficiaries
• the conduct of all parties
• what would be a reasonable financial provision for the applicant and all beneficiaries.

 If the person making the application is an adult child, who is not financially dependant on the deceased, a strong moral claim to the estate must be established and it must be proved that it was unreasonable that no greater provision was made for the applicant in the will.

 If you are having any such problems and wish to contest a will, please contact Maya Bhatiani, who is an Assistant Solicitor at Darlingtons Solicitors on 0208 951 6623.