Dealing with the death of a loved one can be a stressful time for everyone. Therefore understanding the importance of making sure that your will remains up to date and in line with your wishes is imperative and can help reduce the risk of it becoming contentious if issues or misunderstandings arise after death. In the event that issues do arise, it is important to seek legal advice to ensure that you are fully aware of the options that are available to you before embarking on litigation.
Topics to be answered in this article
What is Contentious Probate
Contentious probate relates to any dispute against a person’s estate and how their assets are distributed. There are several ways in which an estate can be disputed including where someone believes that a will is not valid or when someone is not provided for in a will and believes that they should have been. Alternatively, a person may believe that an executor of a will is not carrying out their duties and obligations correctly and therefore can request that the executor is removed from this position.
Contentious Probate where there is a Will
When a person dies leaving a Will, the validity of that Will can be disputed in a number of ways.
- It is believed that the testator does not have the requisite testamentary capacity at the time of providing instructions and signing the Will
- It is believed that someone has unduly influenced the testator to draft their Will in a particular way
- Someone may have made a false representation to the testator which had the effect of poisoning the testator’s mind against a potential beneficiary
- The testator may not have known or understood that they are preparing their Will, or what its terms or their effect were
- The Will appears invalid for want of valid execution (i.e. the testator’s signature may have been forged or not witnessed by two independent witnesses).
Aside from attacking the validity of the Will, a disappointed beneficiary may bring an Inheritance Act claim against the estate to challenge the provision that has (or hasn’t) been left for them by the Will.
Other claims against estates include (but are not limited to) those brought under the Trusts of Land and Appointment of Trustees Act (often where a party claims they have some sort of trust in estate property), and proprietary estoppel claims (when a party claims they were promised property – they suffered a detriment as a result of reliance on that promise – and the Will serves to go back on that promise).
Claims against executors or trustees are also common, as are disputes between beneficiaries, as to how the estate is to be administered.
Contentious Probate when there is no Will
Where someone has not put a will in place, the intestacy rules will apply, and this can be problematic insofar as the intestacy rules only make provision for certain classes of beneficiary. Where the Deceased was married, the intestacy rules allow for the first £322,000 to pass to the surviving spouse and then everything after this will be split 50/50 between the surviving spouse and the Deceased’s children. Of course, if there is no surviving spouse, nor any children, the intestacy rules look to the wider family in a particular order to decipher who will then inherit. Common disputes arise where the Deceased was not married, but left behind a partner who would not be provided for by the intestacy rules, or when a child had not been formally adopted by the Deceased.
How can a Contentious Probate be resolved?
Contentious probate issues should try to be resolved early on, and hopefully without the need to issue proceedings. Resolution may come through negotiations between the parties in written correspondence, or alternative dispute resolution (commonly mediation). Parties should be aware that, litigation is expensive and uncertain, so early engagement in negotiations will almost certainly prove to be most cost effective.
Seeking legal advice from the outset of the dispute ensures that the claim is worth pursuing, that the correct procedure is followed, and that no time limitations on pursuing claims are missed (for Inheritance Act claims, proceedings should be issued within 6 months of the grant of probate).
How can Goughs help?
We would be delighted to assist you with any contentious probate issues you may have, and we would stress that early advice is best. We are also able to advise if you are considering preparing a Will but are concerned that claims may be made against your estate. Whilst there is no way to preclude claims being brought against your estate entirely, a well written Will combined with other pre-emptive strategies may provide you with some reassurance.
Author Bio
Hannah Conway
Before joining Goughs I was a medical negligence paralegal for where I learnt how to deal with sensitive matters and work with vulnerable people. I started as a Legal Assistant at Goughs in January 2021 and in September 2021 joined the Housebuilding and Land Development Team as a Plot Sales conveyancer. Having been a Plot Sales Conveyancer alongside studying the LPC, I gained invaluable experience with working in a client facing role.
Author Bio
Elizabeth Stiddard
I have been practicing civil litigation since September 2017, specialising in contentious private client work since October 2019. My passion for the latter area of law stemmed from my training period at Goughs, when I realised that I had a natural empathy with clients and their difficult and challenging situations, and could use the law to help them to achieve the positive outcomes that they deserved.
