If they don't follow the will and a beneficiary feels that they have not received their full entitlement, they are entitled to challenge this. The executor may be held personally liable for any breaches during probate, even if these were genuine mistakes.
The executor has a duty to carry out their work in the best interests of the estate and the beneficiaries. If an executor breaches this duty, then they can be held personally liable for their mistakes, usually with a financial claim made against them, which can be substantial.
Reasons for an invalid will
Your will may be invalid if: It hasn't been signed properly. It's been destroyed or altered. The person who made the will (known as the 'testator') was not of sound mind at the time of writing their will.
Generally speaking, in claims to challenge the validity of a Will, there is no time limit. However, if a person delays in bringing their claim then the court may hold that as a result of this delay the person is no longer entitled to bring the claim.
The party who wants to contest a will are responsible for the initial legal costs of contesting. If successful, the losing party pays the winning party's costs incurred for contesting a will. You can speak to a solicitor and seek legal advice on contesting a will.
The success rate of contesting a Will depends on a number of factors and if you are considered an 'eligible person'. But a report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.
If the matter proceeds to a final trial, costs can increase to amounts over £100,000. The most expensive part of any litigation is the trial. However, to put the above into perspective, approximately 50% of cases settle before proceedings are issued, and only around 2% of cases proceed to a final trial.
How much does it actually cost to contest a will? The amount it will cost to contest a will depends on when the will dispute settles. If, for example, following an initial letter, the opponent accepts that the will is invalid, the likely legal costs will be in the region of £500 to £1,500 plus VAT.
A stepchild may come forward only if previous versions of a will named them, or if they were formally adopted by the deceased. It should be noted that estranged family members cannot contest a will until the court opens the probate case.
It is common practice (although again, not obligatory) to show a copy of the will to beneficiaries of the residuary estate (i.e. what is left once any debts have been paid and specific gifts have been made) but they are not automatically entitled to see the will, although they do have the right to know who the ...
While the testator is still alive, with limited exceptions, nobody other than the testator is entitled to receive a copy of the will. Following the testator's death, unless and until probate is granted, the will remains a private document although the executors named in the will are entitled to see it.
When someone dies, their debts become a liability on their estate. The executor of the estate, or the administrator if no will has been left, is responsible for paying any outstanding debts from the estate.
How long after probate can funds be distributed in the UK? A Personal Representative, or executor, has 365 days in which to administer the estate of the deceased and to distribute their assets to the Beneficiaries. As complex estates can take longer than a year to wind up, this isn't a strict deadline.
An executor of a Will can be granted permission to withhold money from a beneficiary for a variety of reasons. This authority is called 'reserving', and the executor reserves funds from their estate if they feel it is necessary.
If you believe the executor is not performing the duties of their role, you can make a claim against them. Their duties include collecting the deceased's assets and distributing them according to the will. You should consider making a claim against an executor if they've: Sold the deceased's property at a reduced value.
Unlike many other countries, all people making wills under England and Wales law have what is known as "testamentary freedom", meaning you can leave your estate to whomever you wish. There is no legal requirement to leave gifts from your estate to your children or even to your spouse or civil partner.
English Law gives you the freedom to exclude a child or any other beneficiary from your Wills. Children, and certain other beneficiaries, however, have the right to make a claim against your Will under the Inheritance (Provision for Family & Dependants Act) 1975.
Estranged children are always entitled to claim an inheritance from their parents' estates regardless of whether there is a Will or not. Whether this claim is successful will depend on their individual circumstances. For free initial advice call our advisors or request a callback and we will contact you.
When it comes to the process of contesting a will, there is no legal requirement for a solicitor to be instructed. There is absolutely nothing stopping someone from dealing with a will challenge.
A challenge to a will may be made because it is suspected there has been fraud or forgery, because the testator was subjected to undue influence, or because the will-maker lacked testamentary capacity.
If you want to use a solicitor to be your professional executor always ask how you'll be charged – some solicitors will take a percentage of your estate to pay for any bills. Others will charge for their time.
In NSW, you can contest a Will after probate. But, you must be fast because it's very difficult to contest a Will once the assets are gone.
Omitted Children: Rights and Intestate Share of Estate
As an omitted child, you are entitled to your intestate share of the estate regardless of what the Will states. There are a few exceptions, however, such as a Will that references an upcoming birth of a child, but states the child is specifically disinherited.