What is Contentious Probate?

Contentious probate can be defined as a dispute arising out of someone’s estate after they have passed away.

A higher proportion of people are now in a position to leave valuable assets to others in their Will upon their death and it is becoming increasingly common for disputes to arise in relation to a deceased’s estate

Below are some examples of the types of case that can arise:-

1. Challenges to the validity of a Will:–

Disputes concerning the validity of a Will can arise in a number of ways. Typical examples of how a Will may be challenged are where:-

• the Will is asserted to not have been signed or witnessed correctly;
• it is asserted that a later Will is in existence which replaces in its effect the Will.
• It is asserted that the person making the Will did not have the mental capacity to create a valid Will;
• it is asserted that the person making the Will person was being coerced into the creation of a Will or the Will;
• it is asserted that the person making the Will did not know of or approve the contents of the Will.

2. Claims under the Inheritance (Provision for Family and Dependants) Act 1975:–

The Inheritance Act allows for specific categories of people to apply for reasonable financial provision from a deceased person’s estate on the basis that they have not been left anything or have only been left an insufficient amount.

The Act allows the court to exercise discretion and award reasonable financial provision out of a deceased’s estate.

Claims under the Inheritance Act have significantly increased in recent years with the average value of an estate having risen considerably along with the increased number of divorces having led to increasingly complex family structures contributing to genuine claims of this type arising.

3. Disputes over the administration or distribution of a deceased’s estate:–

Sometimes those “personal representatives” appointed under a Will – Executors - or in an intestate (ie. With having made a Will) – Administrators, to effect the intentions expressed by the deceased in the Will or as defined by the intestacy rules laid down in statute, refuse to organise the estate, do it wrongly, take too much time, or seek to use assets and money for their own purposes.

Possible disputes of this nature could involve:-

• those seeking to obtain a Grant of Probate or (in an intestate situation) Letters of Administration where there is opposition to its issue;
• those seeking to block a Grant of Probate or (in an intestate situation) Letters of Administration in circumstances where there is a belief there is not a valid Will or an incorrect individual has applied for it;
• claims being made against the personal representative appointed for their actions as such;
• those seeking to remove a personal representative and appoint a new one;aa
• application to the Court seeking guidance as to way a deceased’s estate is administered.

In all of these cases where it is likely Court involvement is required, it is strongly suggested that interested parties seek the guidance of an experienced contentious probate solicitor.

There are many cost consequences that a party may be subjected to and strict procedures that should be adhered to. Such solicitor would be well placed to guide someone through this process whilst relieving them of many of the stresses associated with it.

4. Claims against Professional advisors – those who prepared the Will

Claims may be made against professional advisors in various situations:-

• claims against those drafting and advising in relation to the creation of Wills, trusts and estate planning where the advice later transpires to be negligent;
• claims against professionals acting as personal representatives/trustees; and
• claims against professionals for negligent advice to executors/trustees.

Anyone who suffers a financial loss as a result of the above may well be entitled to make a claim.

What can you do?

If you are aware of a pending contentious probate issue or have any concerns that resemble any of the above situations, it would be beneficial in the first instance to seek the guidance of a professional.

Unfortunately, contentious probate matters often arise during a difficult time in an individual’s lifetime, can be complex both in substance and procedure and involve multiple parties with emotions running high. A specialist contentious probate solicitor will assess the situation promptly and provide advice including an assessment of the merits of a case and an evaluating of the prospects of success.

Contentious probate is a particularly niche area of the law. If you are aware of any of the signs of a contentious probate matter as outlined above it would be beneficial to obtain specialist professional advice immediately.

It is so important to set the tone correctly at the start of a matter. Decisions that are made early on without full knowledge of certain matters can be regretted and can easily cause unintended consequences. Obtaining specialist input at the outset can help avoid such problems and help parties to a dispute understand what the key points to focus on are right from the outset, often saving time, stress and expense.

For advice and assistance on any contentious probate matter please contact Robert Sharp solicitor on 01482 621800.