What is Contentious Probate?

 

Contentious probate is the over-arching term used for any dispute relating to a person's estate after their death.

 

The latest figures released by the court show the number of contentious probate cases continue to rise. These include cases where the validity of a will is being challenged, and claims under the Inheritance (Provision for Family and Dependants) Act 1975. It also includes cases dealing with the rectification of wills (cases regarding the way a will was prepared) and the substitution or removal of an executor, administration or personal representative.

 

This can mean disputes amongst family members and beneficiaries around;

 

1. Claims that the will is not valid or queries about the will

  • Wills can be challenged on various grounds, including that the person who made the will lacked mental capacity (called testamentary capacity in these cases) or did not know or approve of the contents of their will, perhaps because of the influence or involvement of another person. Wills can also be challenged if forgery or fraud is suspected. You cannot challenge a Will just because you do not like it or you think it is unfair – there must be a legal basis for the challenge. A person is free to leave their estate to whomever they wish, providing they have the required capacity to make that decision, it is recorded correctly in their will, and they are acting of their own free will and volition.   

  • Claims to interpret or clarify a will's meaning, where there is uncertainty, or it is not clear; this is known as a construction claim. 

  • Claims to rectify a will where there is a mistake in the will's content; this is known as a rectification claim.

 

2. Claims for 'further provision' from a person's estate

  • This is where a person feels they should have been provided for, usually by a spouse or parent. If the will is valid, but an aggrieved person, usually a family member, feels it does not make 'reasonable financial provision' for them when it should do, a claim can be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for more generous provision from their estate. This is also the case if there is no will and the statutory intestacy rules are not favourable to them. To claim under the Inheritance Act, a person must show a genuine financial need and/or evidence that the deceased person financially maintained them during their lifetime.

 

3. Claims around the Deceased promises or possessions

  • Claim to honour a deceased's promise, which has not been reflected in their will. This is where a person to whom the promise was made has acted to their detriment, relying on the original promise. 

  • Claims about 'lifetime gifts' made by the deceased person and whether they are valid and made when the person had capacity and with their knowledge and approval. 

  • Claims regarding the correct ownership of a property.

  • Disputes regarding death bed gifts, or to use the legal term, 'donatio mortis causa' claims, Presumption of Death Act 2013 applications.

  • and disputes regarding the ownership and disposal of ashes.

 

4. Claims around how the Estate has been administered and conduct matters

  • Disputes between executors and/or executors and beneficiaries regarding their conduct in dealing with the estate after the person's death. These are known as executor disputes and sometimes involve people seeking to remove individual executors. 

  • Professional negligence claims in respect of will drafting and/or estate administration.

 

So what has led to the increase in the number of people making claims against estates?

 

We believe it is a mixture of the increase of second relationships and the rise in house prices. Second relationships mean that people often leave their estate to their current partner which their children from a previous relationship are unhappy about as it may not come to them on the partner’s death.

 

Another factor is the rise in house prices. This means estates are much larger, and therefore the potential benefit from contesting a will makes it seem much more worthwhile.

 

Also, more people are making DIY wills where no professional advice has been sought, which means there is no independent evidence available to support whether the will is valid. 

Dealing with a loved one's death is stressful enough, if disputes then arise you need someone who can deal with matters swiftly and as diplomatically as possible.

 

We have vast experience dealing with all types of disputes concerning estates, including challenges to a will to a claim under the Inheritance (Provision for Family and Dependants) Act 1975. If you would like advice, please do not hesitate to contact our Probate Team so we can discuss how we can help you.

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Will Process

  • Make an appointment to see one of our advisers

  • Make a list of who you would like to benefit from your estate
    and the amounts that you would like to leave

  • Make a note of anyone who you would not like to leave money
    too such as a partner you are separated from

  • Come and see one of our advisers

After Signing Services

After your Will has been drafted and signed we can:

  • Store your will securely

  • Scan it and store an electronic copy

  • For a small fee register it with Certainty National Will Register for extra peace of mind

  • Amend your Will as and when you require through the use of codicils

At your appointment one of our experts will talk you through your Will and advise on the best course of action to you as well as advise on potential inheritance tax and nursing home fee issues. Your Will is then prepared and sent to you with a full commentary of what the effect of each provision is. Only when you are completely satisfied will your Will then be executed and form a legal document.