The process by which an individual gains authority to deal with the assets of someone who has died is known as probate. The document known as a grant of probate is issued by a court of law to the person named in the will of the deceased as an executor or where there is no named executor to one of the beneficiaries who is to receive a bequest under the will. It may well be that another person objects either to the person who is to be appointed as an executor or questions the validity of the will giving rise to a situation involving Contested Probate Solicitors Litigation whereby an application can be made to the courts to litigate the rights and wrongs of the entire matter.
Whilst it is unusual for a third party to successfully object to the appointment of an executor named in a will there have been certain circumstances in the past that have justified a contested probate application. If for example the named executor was a convicted fraudster and thief it may well be that a judge would agree with the other beneficiaries under the will and refuse to ratify the appointment however there does need to be a serious situation of real financial risk in existence before a judge will overturn the decreed request of the deceased person. Much more common in applications for contested probate is the situation where the executor either by incompetence, neglect or general bloody mindedness fails to carry out their duty to the prejudice of other beneficiaries in which case contested probate solicitors may apply to a judge who may terminate the appointment and appoint another executor.
There are a number of other common situations that may lead to contested probate solicitors making an application relating to validity of the will, awards for dependents and undue influence in the drafting of a will particularly of elderly testators: –
Execution of the Will – A will must be properly signed in the presence of two witnesses who must be present together with the testator at the time of execution. Failure to comply with this simple requirement means that the will is invalid and is open to challenge. DIY wills are particularly prone to failure in this dimension and the method of execution should always be checked out by contested probate solicitors with the witnesses by any third party who wished to make an application for contested probate.
Financial Provision for Dependents – Anyone who was supported by the deceased prior to death may make an application for financial provision from the estate. This proviso does not only apply to spouse and legitimate children but may also be enforced by any other person including illegitimate children and non-relatives who may have had the benefit of being maintained either wholly or in part by the deceased prior to death.
Undue Influence by a Third Party – Elderly people with failing mental faculties including dementia are particularly vulnerable to undue influence from a third party by way of persuasion, threats of violence or blackmail. Any will made when the testator was not in full mental control and in a position to know exactly what was going on at the time the will was drafted and executed will be held to be invalid based on undue influence and any earlier will should thereafter take precedence.
Most specialist contested probate solicitors deal with applications to a court of law for litigated testamentary matters using the no win no fee scheme. They do not usually ask you to fund or finance your application and they do not get paid unless you get paid. Most lawyers offer free initial advice and a telephone consultation at no cost and with no further obligation. If you would like to speak to a specialist lawyer just call ACTAPS – The Association of Contentious Trust and Probate Specialists. The solicitor will take an initial statement over the telephone and will probably advise you there and then about liability and the amount of any likely financial award in the event of a successful application.