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Will Dispute FAQs
Looking for some answers about Inheritance and Will Disputes? We hope this list is of some assistance to you, but please note, the answers provided are generic rather than directed at your particular case, and in this complicated area of law there is no substitute to obtaining specialist legal advice.
Inheritance and Will Disputes
How do I find out if there is a Will?
Often people will keep their Will at home or will have asked their Solicitor to keep it in safe storage. It may be that you have to search the Deceased’s paperwork to locate the Will or speak with their solicitor.
Pearson Solicitors are a member of the Certainty National Registry of Wills. This is a National Will Register (www.certainty.co.uk). Certainty is able to conduct a low cost search through their records and also has a Will search facility which connects solicitors across the UK.
If you are unable to locate a Will but believe that someone else might have this, you can conduct a Standing Search Application at the Probate Registry. A fee of £10 is payable. If someone has made an application for Grant of Probate the Probate Registry will be able to provide you with a copy of the Will. The standing search remains in place for six months so if a Grant is taken during this time you will be sent a copy of the Grant together with the Will. If no Grant of Probate has been applied for then the Will cannot be provided.
How is the Estate distributed if there is no Will?
If the person who has died has not made a Will, their estate will be divided in accordance with the intestacy rules. These rules specify which relatives are entitled to inherit the estate. (See Flowchart)
Can I Contest a Will?
When a person makes a Will they are entitled to leave their Estate to whomever they wish. In certain instances a Will may be challenged. You can only challenge a Will once the person who has made the Will has died.
There are a number of reasons why a Will may be challenged (Link to Contesting a Will page):
- Lack of valid execution
- Lack of "testamentary capacity"
- Lack of knowledge and approval
- Undue influence
- Fraudulent wills and forged wills
What is a Grant of Probate?
Where the deceased left a Will, the Executors appointed by the Will, may need to apply for a Grant of Probate to be able to obtain the monies due to the estate. This is an official document issued by the Probate Registry and is evidence of the Executor’s authority to administer the estate and enables them to gather in the Deceased’s assets and distribute to the beneficiaries.
What is a Caveat?
If you believe the Will to be invalid then you can stop the Executor from taking out a Grant of Probate. A Caveat is used to prevent the issuing of a Grant of Probate at all or prevent a Grant in respect of a particular Will. The person wishing to enter the Caveat should complete the Caveat form and send this to a District Probate Registry with a fee of £20. The Caveat will remain in place for 6 months but can be renewed on payment of a further fee. We would suggest that you seek legal advice so that your claim to challenge the Will can be investigated further during this time.
When should I use a Caveat?
A Caveat should be entered if there is an issue regarding the Will i.e. that you do not believe that it is the last Will, the Deceased was not ‘of sound mind’ when the Will was made or the Will was not properly executed. A Caveat can also be entered if the person intending to apply for Probate is not entitled to do so or there is a dispute that two or more people are equally entitled to apply for probate. A Caveat should not be entered if you intend to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. A Grant of Probate is required to enable proceedings to be commenced under the Inheritance Act and therefore a Grant needs to be obtained. You should note that any claims made under the Inheritance Act should be commenced within 6 months from the Date of Grant of Probate and in this instance if you are not aware of the existence of a Grant of Probate you should conduct a Standing Search (See How do I find out if there is a Will).
Can I challenge a Caveat?
If you are an Executor of an Estate if a Caveat has been entered you will be informed by the Probate Registry (if you have not previously been notified by the person who has entered the Caveat). The Grant of Probate cannot be granted and therefore you may wish to challenge the Caveat to have it removed.
You would need to send a ‘warning’ to the Leeds District Probate Registry. No fee is payable on sending the warning. This will be sent to the person who entered the Caveat and should they want the Caveat they need to act promptly.
I have received a ‘Warning’ in respect of a Caveat I have entered
If your Caveat has been challenged and a warning has been sent, in order for this to remain you need to enter an ‘appearance’ with the Probate Registry. This is a further form filed at the Probate Registry where you filed your original Caveat and must be filed within 8 days of receiving the Warning.
Once you have filed the appearance your Caveat will remain in place. The Caveat can then only be removed by consent of both parties or following Court proceedings.
What is a Grant of Letters of Administration?
Where the deceased’s did not leave a will, the Administrator undertakes a very similar role to that of the Executor. The Administrator may need to apply for a Grant of Letters of Administration from the Probate Registry and is evidence of the Administrator’s authority to administer the estate and enables them to gather in the Deceased’s assets and distribute to the beneficiaries.