If you are contemplating challenging or contesting a Will you should seek legal advice as a matter of urgency because the time you have for making your challenge varies considerably according to the type of challenge in question and the time limit can be as little as 6 months from the date of the issue of the grant of probate or the letters of administration.
Time limits in contested probate proceedings vary according to the type of claim and the time limits in particular cases can vary according to the facts of a particular case but as a useful rule of thumb important time limits to be aware of are as follows :
|Nature of Claim||Time limit|
|Inheritance Act claim for financial provision from an estate||6 months from date of grant|
|Beneficiary making a claim against an estate||12 yrs from date of death|
|Fraud/claiming against an executor for appropriating estate assets||No time limit applies|
You need to take immediate advice to avoid time limits being missed because if a time limit is missed the opportunity to bring a claim may be irretrievably lost.
It is perfectly possible to contest a Will after a grant of probate has been issued however, for practical and costs reasons, it is always better to challenge a Will before the grant of probate has issued.
Very often this is best achieved by entering a caveat at the Probate Registry to prevent the grant of probate being issued.
There can however be costs consequences of lodging a caveat and it is always better to take legal advice before taking this step.
Caveats, Warnings And Appearances
If you wish to challenge the validity of a Will it is always better to do so before the executors named in the Will you wish to challenge have applied for and obtained a grant of probate.
It is therefore often appropriate to lodge with the Probate Registry a caveat which prevents a grant of probate being issued. A caveat will remain in place for 6 months however if you want it to continue after this date a caveat can be renewed for a further 6 months and indeed again after that for so long as it is required. If you wish to remove a caveat that you have lodged you can simply write to the Probate Registry and ask for it to be removed.
The purpose of the 6 month period however is not simply to prevent the issue of a grant but is rather to provide a period for you to investigate the position to establish whether or not you have a valid challenge to the Will.
Caveats should not be lodged without proper consideration however.
If you lodge a caveat the executors named under the Will can challenge the caveat by sending a “warning” to the Probate Registry which will then be sent on to the person who lodged the caveat.
That person then has to decide whether or not they wish to enter an “appearance” which is a document confirming and substantiating the caveat.
If no appearance is entered the caveat is automatically removed and the executor can proceed to apply for the grant.
If an appearance is entered the caveat remains in place and it can then only be removed either by the agreement of the parties or by the executor applying to Court.
The entry of an appearance however is a significant step and costs consequences can arise. If an appearance is entered, an Application is made to remove the caveat and this is granted by the Court then the Court can also make an Order that the person who entered the caveat should pay the costs of the person applying successfully to Court to have the caveat removed.
Accordingly whether or not a caveat should be initially entered and then subsequently continued is a matter which needs to be carefully considered in every case.
How Easily Can You Be Removed As An Executor?
It is possible for a disgruntled beneficiary to make application for an Executor to be removed from his or her position and replaced by another Executor to be appointed by the Court. This could be another family member or a professional Executor such as a Solicitor who would then be paid for acting as Executor in the place of the removed Executor.
Most such applications are made under s50 of the Administration of Justice Act 1985.
These applications are normally made for the removal of Executors after probate is granted but applications can be made beforehand.
Such an application is not easily made and the Court do not remove an Executor lightly. The Court will consider if it is in the interests of the proper administration of the Estate overall, which will depend on the circumstances of each case, rather than simply consider the wishes of an individual beneficiary. If an application has been made to remove you as Executor you should take legal advice.
What happens to my estate if I do not make a Will?
If you die without a valid Will, the Intestacy Rules, which were updated in 2014, determine who receives your estate and how much they receive. It depends on (a) who survives you and (b) how much money you have.
Your estate will be distributed differently depending on whether your husband, wife or civil partner has survived you, and whether or not you have any children.
The effect of the Intestacy Rules may not be what you envisaged and they may not make adequate financial provision for your surviving spouse or civil partner.
For instance, your spouse or civil partner does not automatically inherit the whole of your estate. The amount that your spouse or civil partner inherits depends on whether you have any children. If you have no children, your surviving parents or siblings may inherit some of your estate alongside your spouse or civil partner (depending on the value of your estate).
In addition, a surviving partner who wasn’t married to you or wasn’t in a civil partnership with you has no automatic right to inherit your estate under the Intestacy Rules, even if you have lived together for many years.
It is not advisable to rely on the Intestacy Rules to determine who inherits your estate. The only way to ensure that your estate is left to your desired beneficiaries is to make a valid Will.
Making a Will also gives you the opportunity to appoint suitable people as your Executors. If you have young children, you can appoint Guardians for them. You can leave your personal belongings to whoever you want. You may also wish to leave specific gifts of money to certain family members, friends or charities. There will probably be other matters to consider which you had not thought about before, which we can advise about and assist you with.