Contentious probate

What is it?

Contentious probate is a legal process where a person disputes the validity or the interpretation of the deceased’s will.

A contentious probate lawyer will endeavour to dispute the validity of what may appear to be the deceased’s last and true valid will.

There may also be the possibility of pursuing a claim where there is no will at all.

When should you consider contentious probate action?

There are countless permutations a dispute might take, everything from disputes over the administration or distribution of a deceased’s estate to incidents where a will has been forged.

Contentious probate action has to be assessed according to individual circumstances but possible reasons to consider could include the following scenarios.

Where a will is suspicious either because of its content, timing and/or choice of executor.
It may be argued that the will was not signed or witnessed correctly.
When the deceased person did not have the mental capacity to make a valid will.
There is a later valid will in existence.
The person’s estate had been depleted before their death by another person and is worth less than expected.
A person received financial support while the deceased was alive but did not benefit in the will.
Where someone was promised an inheritance but the person died leaving a testamentary document that doesn’t include them as a beneficiary
An individual is named as the executor of a will but there is a dispute with the co-executors or the beneficiaries.
There is a dispute as to the occupation or sale of the deceased’s property.
Sometimes a will is valid but contains a mistake or a provision is not understood. In certain circumstances a court will allow a will to be rectified or seek to determine the exact meaning of a clause or gift.
There are often disputes over the costs incurred by those administering the estate, the trustees appointed, or the lawyers assisting them. It may be possible to apply to the court to reduce those costs. Trustees may fail to properly administer a trust or cause the trust fund to suffer loss and it may be possible to recover those losses.

A contentious probate lawyer will launch an investigation that will help to prove what the true wishes of the deceased person were, so that their assets and money go to the right person.

Who does contentious probate impact upon?

For someone to be able to launch an inheritance claim they must fit the description of persons who can launch a claim as stated in the 1975 Inheritance (Provision for Family and Dependants) Act, Section 1. This includes:

The spouse or civil partner of the deceased
Child of the deceased
Step child of the deceased
Dependant of the deceased
Someone who lived in the same home as the deceased as if they were a married couple or civil partners

These people can make an application on the grounds that the will did not make ‘reasonable financial provisions’ for them.

What is the process?

Once you’ve ascertained that you are able to bring forth a contentious probate claim you need to work out on what grounds you can contest the will. This may be:

Fraudulent or forged wills – if there is a reason to suspect that the will was either altered or forged, then it is a valid ground to contest the will.
Lack of testamentary capacity – for a person to write a will He/she must be of sound mind. If it can be proven that the person was not of sound mind then that forms a valid ground for contesting the will.
Undue influence – a person should write the contents of their will out of their own free will. If it can be proved that the contents were coerced then this can be a valid reason to contest the will.
Incorrect execution of the will – this arises when the executor of the will does not do it in accordance with what was stated in the will.

Finally, if a will does not comply with the Wills Act 1837 then it is invalid in the eyes of the law.

The sooner the will is contested the better, as the executor should be placed on notice before the inheritance is distributed.

How to stop probate

t is often easier to contest a will before probate is granted or when a grant of representation is issued, meaning before the executor can distribute the assets of the deceased.

To stop a grant of representation from going ahead, you can lodge a caveat with the Probate Registry which will remain in force for six months from the date it is entered.

A caveat gives you time to decide if you are going to dispute the will – and it gives you time to discuss your case with a solicitor.

If you want to contest a will using the Inheritance Act, the time limit is six months from the time the probate is granted. If you want to contest a will on grounds of fraud then there is no time limit.

Do I need a contentious probate lawyer?

Contentious probate is a specialist area of law.

Whilst contentious probate can result in High Court litigation, there are specific rules that govern contentious probate prior to and after the issuing of proceedings.

This means that someone who finds themselves in need of a contentious probate lawyer should instruct a specialist and not just either a commercial litigator or a private client solicitor.

Instructing a solicitor who is not a contentious probate specialist could be extremely harmful to the progress of a claim.

You can contend the will via:

Court, where it will become a civil case.
Mediation where a mediator will control the proceedings. This is much less confrontational and generally much cheaper and easier.

What is a Grant of Probate?

Before the will of the deceased is executed a Grant of Probate letter is issued by the probate registry.

This is a document issued to the next of kin, or to the executor named in the will to confirm their authority to execute the will.

If the estate left behind is small then a grant letter is not needed. If the estate is big then the need for a grant letter is highly dependent on the limits set by the respective societies like banks or building societies.