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What is Contentious Probate?

View profile for Ceri Philpott
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The death of a loved one is an extremely emotive time for everyone involved. It is common for family members of the deceased to have different understandings about the deceased’s final wishes and conflicting expectations about what the ‘right’ distribution of inheritance should be. Even where the deceased left the clearest Will in the world, it is still common for disputes to arise. 

Contentious probate refers to a dispute that arises after a person dies. It can cover a wide range of Will and probate related issues including:

  • Disputes over the validity of a Will
  • Disputes over the deceased person’s final wishes if they died intestate
  • Disputes over the execution of a deceased person’s estate
  • Disputes over inheritance

Such disputes can be challenging to resolve because there are often very intense emotions involved. Parties are often tempted to fight it out until the bitter end. It is not uncommon for disputes to end up in court and to run into the tens of thousands to hundreds of thousands of pounds, draining the deceased person’s estate and causing irreparable damage to family relationships.

Therefore, wherever there is the slightest risk of a dispute, it is advisable that the people involved seek legal advice as early on as possible to try to sort out the issues and find a solution before they spiral out of control.

Types of contentious probate dispute

Challenging the validity of a Will

There are strict legal rules that must be followed for a Will to be valid. If a Will is successfully challenged, a judge may change it or set it aside completely. There are several grounds for contesting a Will, including:

  • It does not comply with the legal requirements under the Wills Act. E.g. it is not in writing, properly witnessed, or signed
  • The testator (the person who made the Will) did not have ‘testamentary capacity’ (mental capacity) to make a Will. E.g. they had a brain injury or illness that affected their decision making
  • The testator did not freely enter into the Will (undue influence or coercion)
  • The testator did not know or approve of its contents. E.g. their wishes were recorded incorrectly
  • The Will is a forgery or fraudulent

Making a Will challenge can be a difficult process because of the vital principle of ‘testamentary freedom’ in UK Will law. This principle states that a testator has the freedom to leave their money and property to whomever they like. In theory, a testator is entitled to pass over their close relatives and leave their estate to friends or even a charity instead. This is very different to some other countries where testators must leave their money to their direct descendants before anyone else.

Therefore, it is vital that the Will challenger has sufficient evidence to raise their dispute. To allow time for this, they can apply for a ‘caveat’ which prevents probate from being issued for six months. It is also essential to consult a specialist contentious probate lawyer because Will challenges can become extremely complex.

Inheritance Act claims

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are a type of Will challenge. You may be able to raise an Inheritance Act claim if you are a close relation or dependant of the deceased and you have been left out of their Will or not left as much as you need.

Again, because of the principle of testamentary freedom, Inheritance Act claims are difficult to prove. It is rarely the case that the court will allow a claim simply because the applicant is related to the deceased (the common scenario is an estranged child who was left out of the Will). These cases involve multiple factors, such as the financial needs and resources of everyone involved, the size and structure of the estate, the various obligations and responsibilities the deceased had during their life, the conduct of the parties involved and any other relevant circumstances.

Intestacy disputes

It is very common for disagreements to arise when someone dies without leaving a Will. The deceased did not leave clear instructions so you cannot really be sure what their wishes truly were. Family members will often have conflicting recollections of the wishes expressed by the deceased during their lifetime and reconciling this with the consequences of intestacy can be upsetting.

When a person dies without leaving a valid Will, their estate is distributed according to the Rules of Intestacy. The Rules state that only the deceased’s spouse, civil partner and/or closest relatives can inherit – unmarried partners, step children and any charities the deceased supported are not allowed to inherit.

Intestacy related disputes may arise for a number of reasons, such as:

  • The deceased’s unmarried partner or dependants have not inherited anything
  • An estranged spouse or civil partner has inherited over more ‘deserving’ family members
  • The deceased family cannot agree on who should administer the estate
  • The estate is being administered poorly by the administrators

Probate and estate administration disputes

Often, it is not the contents of a Will that causes issues, it is the way the estate is handled by the executors (if appointed under the Will) or administrators (if there is no Will). Probate and estate administration disputes may arise due to a number of reasons, including:

  • Unnecessary delays when administering the estate
  • Administering the estate, incorrectly. E.g. distributing the incorrect amounts of inheritance to the beneficiaries
  • Dishonest behaviour
  • Selling assets for below market value

If someone believes that their loved one’s estate is being administered poorly or incorrectly, they can apply to court to remove and replace the executors or administrators. Like all other types of contentious probate dispute, this is a difficult task requiring evidence that the executors or administrators are mismanaging the estate.

Do you need advice about contentious probate?

If you need advice about contesting a Will, challenging probate, claiming inheritance or defending a claim, our contentious probate solicitors in Newport can provide clear, practical advice and fierce representation during any court proceedings.

As dispute resolution experts, we are skilled at helping individuals find positive but amicable, cost-effective solutions to all types of contentious probate dispute.

For further information, give us a call to arrange a free, no-obligation consultation.