What is Contentious Probate?
- AuthorPhilippa Rowley
And the top reasons a dispute arises
Contentious probate covers the disputes which arise after somebody dies. The disputes dealt with in this department are extremely varied and are not limited to disputes about the validity of a Will.
Here are examples of the most common disputes a contentious probate solicitor might be asked to advise on:
Inheritance Act Claims
The Inheritance (Provision for Family and Dependants) Act 1975 applies whether there is a Will or not. The Act provides for specific categories of individual, usually those closest to the deceased, to make claims against the estate. For example the Act allows cohabitees of the deceased, the spouse of the deceased or children of the deceased to bring a claim.
These claims could be bought in order to increase the individuals’ inheritance or where they have been left nothing under either the deceased’s last Will or the Intestacy Rules (where there is no Will). For example the court may award an estranged child a share of their parent’s estate or may increase the inheritance of a wife from her husband’s estate where this was deemed to be unreasonable.
The court takes into account certain specified factors in order to decide what would be reasonable for the deceased to have left to the individual making the claim. These factors include the relative financial circumstances of the claimant and the beneficiaries, what obligations the deceased owed to the claimant and the claimant’s financial needs now and in the future.
Disputes over the validity of the Will
A number of requirements need to be satisfied in order for a Will to be valid, as a result a Will may be invalid for the following reasons:
- The Will has not been properly signed by the testator in the presence of two independent witnesses;
- A family member or someone known to the testator was coercing or forcing the testator to make the Will in those terms or otherwise exercising undue influence over the testator’s decision.
- The testator did not understand the terms of the Will, perhaps as a result of a mental health issue. It is imperative that the testator had the mental capacity to appreciate the effect of his/her Will and the responsibilities he/she had to family members;
- The Will has been forged; or
- A later Will has been found.
If a Will is found to be invalid the estate will then fall to be distributed in accordance with an earlier valid Will or the Intestacy Rules (where there is no Will).
Disputes over the administration or distribution of a deceased’s estate
Following a death either the executors (as appointed by the will) or the family member entitled to be appointed under the intestacy rules (where there is no will) is under a duty to administer the estate.
They should efficiently gather in the deceased’s assets, pay debts and distribute the remainder to the appropriate beneficiaries. However this is not always the case and there are situations where concerns are raised. For instance the estate may not be being properly distributed because the executor is keeping assets or money for themselves.
In these circumstances action can be taken to prevent the personal representatives from taking further action in the estate. In the worst cases an application can be made to court to remove and replace the personal representatives.
Claims regarding promises made by the deceased prior to death
It is not uncommon for promises to be made during the deceased’s lifetime which are then not reflected by the deceased’s Will. These could include for instance a promise by the deceased that the family business will be given to their son or that their wife will be allowed to live in the family property for the rest of her life.
If the promises made are specific enough it is possible to bring a claim against the estate of the deceased for the promise to be honoured.
If you think you may have a Contentious Probate issue we recommend obtaining specialist legal advice from one of our probate lawyers. Please email Philippa Rowley or call our Contested Probate team on 0800 118 1500 to find out how we can help you. Or alternatively click here for more information.