Contentious probate refers to any dispute about how a person’s estate is administered after their death. In this article, what is contentious probate, we take a look at these issues in a little more depth.
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What is contentious probate?
Among the most prevalent types of contentious probate claims are those based on a person’s Will not being valid, as well as claims for ‘additional provision’ from their estate, which is where a person believes they should have been provided for, typically by a spouse or parent.
Wills can be challenged on a variety of grounds, including that the person who made the Will lacked mental capacity (referred to as testamentary capacity in these cases), or that the person who made the Will did not know or approve of the contents of their Will, possibly due to the influence or participation of another person. Wills can also be challenged if it is considered that they have been forged or fraudulently created.
In particular, it is vital to emphasise that it is not realistic to contest a Will simply because a person believes the Will is unfair or because the provisions of the Will are not to his or her liking.
In English law, the idea of testamentary independence takes precedence above all other considerations. Essentially, this means that a person is free to leave their estate to whomever they choose, provided that they have the mental capacity to make the decision, that it is properly recorded in their Will, and that they are acting of their own free will.
An aggrieved person, usually a relative, can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to obtain more generous provision from the deceased’s estate if their Will is valid but they believe it does not make “reasonable financial provision” for them when it should. This is also true if there is no will and the statutory intestacy laws are unfavourable to the surviving spouse and children.
This doesn’t mean that a person who believes they should have received a larger share of a Will’s assets can file a claim in all circumstances. In order to make a claim under the Inheritance Act, a person must demonstrate that they have a genuine financial need and/or that the deceased person provided them with financial support during their lifetime.
Examples of disputed probate:
- Claim to interpret or clarify a Will’s meaning, where there is uncertainty, or it is not clear; this is known as a construction claim.
- Reclamation for rectification of a Will where there is a mistake in the content of the Will. This is referred to as a “rectification claim.”
- 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. This type of claim is known as proprietary estoppel and is more common in farming families where a person has worked on the farm for their lifetime under the promise it would be passed wholly or partly to them.
- Claims about ‘lifetime gifts’ made by the deceased person and whether or not they are valid and were made while the deceased person possessed mental capacity and with their knowledge and approval.
- Claims regarding the correct ownership of a property, known as constructive or resulting trust claims.
- The existence of disagreements between executors or between executors and beneficiaries regarding their actions in dealing with the estate following the death of a person. These are referred to as executor disputes, and they might involve people attempting to have specific executors removed from their positions.
- Professional negligence cases involving Will preparation and/or estate administration.
There are additional more specialised forms of claims that fall under the umbrella phrase “contentious probate” that are covered by this term. Some of them include arguments over death bed presents (or, to use the technical word, “donatio mortis causa” claims), applications under the Presumption of Death Act 2013, petitions for relief from forfeiture, and conflicts over the ownership and disposition of cremated remains, among other things.
Several factors have contributed to a significant increase in the number of disputed probate claims during the last two decades, including but not limited to:
- Because our society is becoming increasingly prosperous, it is becoming more worthwhile for dissatisfied people to struggle for what they believe they are entitled to.
- In an effort to save money, more people are creating their own Wills without consulting a professional, which means there is no independent evidence to support whether or not the will is legitimate.
- Couples who divorce and remarry and have children from previous relationships, as well as those who live together as cohabitees but do not necessarily marry, result in more unusual family structures than in the past.
- People are more aware of their legal rights and more prone to consider taking legal action as a result of this awareness.
- Wills being contested is a topic that is frequently discussed in the media, as well as in certain high-profile celebrity situations.
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We have a proven track record of helping clients deal with disputed probate. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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It is important for you to be well informed about the issues and possible implications of disputed probate. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
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