One of the growth areas for lawyers in recent years has been litigation in a court of law relating to contested probate or will disputes. The public in general have become more affluent and house price rises over the last 20 years have ensured that many estates are of substantial value and well worth fighting for in a contested probate action in the event that there are grounds for contesting a will.
Most of the population will possess assets at the time of their death. In order to get those assets distributed according to the testator’s wishes, without the risk of someone taking legal action for contesting a will, it is essential to give clear, enforceable documentary instructions in a properly drafted will to the person selected to deal with the distribution known legally as the executor. The duty and role of the executor under the authority of a Grant Of Probate to ensure that the wishes of the deceased are carried out and it is the testators duty to ensure that execution of the document and its intentions are within legal guidelines to ensure that it does not become subject to legal action for contested probate.
In the event that a will has not been prepared, there are legal regulations that determine how the assets – money, property and possessions – should be distributed called the intestacy rules. These legal rules clearly define the various degrees of relationship to the deceased who are entitled to claim assets using a Grant of Administration. This document is issued upon application to the court by the person who becomes administrator of the estate which is a similar role to that of executor. Under these rules, if there are no qualifying relatives of the deceased, the Government may be able to take all assets.
The most common errors that enable a potential beneficiary to take action for contested probate, particularly common in a homemade will include :-
testator lacking knowledge of the legal requirements for signing and execution
will failing to distribute all assets, allowing the state to claim unallocated items
improper alterations made after initial execution
not taking account of subsequent births, marriages, deaths, divorces and civil partnerships
failure to consider the rights of dependents
mental instability of the testator at the time of execution including senility in the elderly.
One of the most fertile areas for lawyers in regard to contesting a will relates to lost or destroyed wills. A will can be legally destroyed physically by the person who made it or by someone acting on their behalf including their wills probate solicitor and the will have no consequence thereafter. Tearing the will up or burning it or some other destructive method is sufficient. Accidental damage does not cause revocation. If the dog eats the document, it is still valid and a copy will suffice to prove the testators intentions. If it is lost in the post or stolen from a lawyer’s office, it is still valid. Wills can also be altered by an addendum, called a codicil, which must be properly executed to be legally binding.
An executor is appointed by the deceased person. Executors are usually solicitors, bankers, accountants or trusted family or friends. The executor’s duty is to carry out the wishes of the deceased. An executors duties include the responsibility of collecting all assets as instructed and is also responsible for paying all debts including inheritance tax and subsequently distributing the net assets to the beneficiaries. Unless it is an extremely simple case an executor will usually instruct a solicitor to act on their behalf.