What are the most common reasons to dispute a Will or Trust?

November 2020

Losing a loved one is undoubtedly a very stressful experience. In some cases, this stress can unfortunately be magnified as a result of disagreements between family members. In these situations, it can be very difficult to try and reach an agreement that satisfies all the parties involved. This area of the law is called contentious probate.

Of course, not all arguments after a death can be answered by the law. It is not always possible to challenge a Will or trust arrangement simply because you think it is unfair. It’s also important to note that only certain people have the right to raise a challenge: you would need to be a close family member, a beneficiary of the estate or someone who could reasonably have assumed you would be a beneficiary.

Below we have detailed some common reasons why you may have a legal case in the event of a disagreement over a Will or a trust.

If you believe the Will is invalid

There are a number of reasons why a Will might be considered null and void. If you’re unhappy with the outcome of a Will, the first step is often to carefully consider whether or not the Will is invalid.

A Will could be invalid if:

• It has not been correctly signed or witnessed
• The person who wrote the Will was not of sound mind when they did so
• It was revoked by a subsequent marriage or civil partnership
• The person who wrote the Will was unduly influenced into writing it
• The person who wrote the Will was unaware of the contents
• The Will was made fraudulently
• The person who wrote the Will attempted to destroy or revoke it
• A later Will exists

In some situations there might be issues relating to clarity. A Will might contain confusing or misleading clauses that require rectification.

If you don’t believe that a trust is valid

A trust is a formal body set up in order to hold money or property on behalf of a person or group of people (the beneficiaries). It is an important legal entity that needs to be properly set up and managed.

There are likely to be legal implications if a trust has not been correctly formed or administered, or if it’s simply not possible to carry out the administration of a trust as instructed.

If you believe you have the right to receive financial provision from an estate

The Inheritance (Provision for Family and Dependents) Act 1975 states that certain individuals have the right to be provided for from an estate. If you were being financially supported by someone before they died and they did not make any provision for you in their Will, you may be able to challenge the Will on this basis.

The individuals who would be able to make a claim on this basis would usually be closely related to the person who has died, such as a spouse, civil partner or child. However, there are exceptions to this, for example cohabiting partners, former spouses or individuals who have been previously financially maintained by the person who has died.

If you believe that an estate is being administered or distributed incorrectly

It may be the case that there is no issue with the Will itself, but simply with how it is being administered. This can be a particular issue if an individual who has been appointed as an executor is being hostile, ineffective or doesn’t appear to be doing their job correctly.

In some cases, beneficiaries might not receive what they believe they were entitled to, or they might feel the executors are taking too long to distribute what is due.

If you believe that a Trust is being managed badly

If you are involved with a trust, it will be important that the trust is being managed efficiently. If beneficiaries of the trust are not being given access to their entitlement, or if the trust is being administered in a way that would cause beneficiaries to suffer a loss, you would have the right to challenge this legally.

In these cases, the courts would have the power to remove or substitute a trustee that is not fulfilling their role.

If you believe that the person who has died was being financially exploited

Unfortunately, financial exploitation often only comes to light after someone has died. This usually falls under the category of elder abuse. This can be a particularly challenging situation if the exploitation has been committed by someone close to the person who has died.

Some cases might be quite clear cut; perhaps someone had been accessing the elderly person’s bank accounts without their knowledge. Other situations can be more difficult to unravel; perhaps someone used undue influence to persuade the elderly individual to give them valuable gifts.

In cases where any kind of financial exploitation or elder abuse is suspected, we’d recommend seeking professional advice.

What should you do if you’re involved in a disagreement?

If you’re involved in a disagreement after a death, the best thing to do is to seek specialist advice from a legal professional. A solicitor who is experienced in contested probate will be able to advise you on whether you have any legal right to challenge a Will.

Whatever the circumstances, they’ll be able to talk you through the best available next steps.