FAQs

Contentious Probate refers to legal disputes that arise over the validity of a Will or the administration of an estate after someone’s death.

There are many reasons why a Contentious Probate situation might occur.

There may be issues around the handling of a trust or disputes over the interpretation of the Will. Perhaps there was a clerical error. Many claims are also brought when the validity of a Will is brought into question.

Contesting the validity of a Will might include:

• Has the Will been properly executed?
  There are strict rules around the witnessing and signing of a Will. Errors and poorly written Wills can lead to claims of an invalid Will.

• Fraud and forgery
  A Will might be forged, or the signature fraudulently created.

• Undue influence
  Sometimes people are pressured into making a Will on terms they don’t want. This is known as ‘undue influence’, but it can often be hard to prove.

• Mental capacity
  For a Will to be valid, the testator must have the mental capacity and be of sound mind to fully understand the terms of the Will.

• Did the testator know of and approve the contents of the Will?
  A Will may be found invalid if the circumstances around how the Will was made might be considered suspicious.  A court would need to be assured that the testator knew about the Will and was happy with its contents.

• Broken promises
  ‘One day, all this will be yours.’ Proprietary estoppel is a legal term that might be better considered as a ‘broken promise’. While a person has the right to leave their estate as they see fit, Proprietary Estoppel may come into play if you’ve suffered a financial loss as a result of the promise.

A Will does not have to be drafted by a solicitor. But making a Will without proper legal advice and due process can leave it open to claims of it being invalid or its contents ambiguous. It’s very risky writing a Will yourself.

If a Will is found to be invalid, the deceased’s estate could be distributed according to the rules of intestacy or a court may refer to a previous Will, neither of which might align with the deceased’s wishes.

Anyone can contest a probate or challenge a Will but it’s typically those with an interest in a Will such as family members, beneficiaries, or anyone who believes they have been wrongfully excluded from a Will.  There can be costs consequences of challenging a Will and being unsuccessful.

The duration varies based on the complexity of the case and the Willingness of parties to negotiate. It can range from several months to several years.

If you want to contest a Will or bring a claim against an estate, it’s vital to get legal advice as soon as possible. Depending on the nature of the claim, a time limit may apply and it’s very hard to claim assets from an estate that’s been distributed.

• There is technically no time limit to contest the validity of a Will. But as above, it’s difficult to get assets from an estate that’s been distributed.
• A claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision must be made within 6 months from the date of the grant of probate.
• A claim for rectification of the Will under section 20 of the Administration of Justice Act 1982, also must be made 6 months from the date of the grant of probate.

While it’s technically possible to contest a Will even after probate has been granted, the process becomes more complicated, especially if the estate has been distributed. It’s vital to move quickly if you think there’s a problem.   See a solicitor and ensure you’re position is protected.

A testator must meet certain criteria to be considered to have ‘testamentary capacity’. You could contest a Will if a testator is found to have a ‘lack of testamentary capacity’. When making a Will a testator must:

• be of sound mind when they draft and sign their Will
• understand exactly what’s in their estate
• understand who they are choosing to leave items to, and who is left out (including reasons why in certain circumstances)

The rise of Alzheimer’s disease and dementia has put a lack of testamentary capacity into the spotlight. But having Alzheimer’s or Dementia at the point of drafting doesn’t automatically mean the Will is invalid.

If you have concerns about testamentary capacity, it is important to seek advice from a suitably experienced legal professional. 

It is also vital to ensure that the proper steps are followed making the Will. 

If there are any concerns, our Will writing solicitors for example, Will seek a doctor’s opinion, which helps to reduce potential disputes that may arise later over the testator’s capacity at the time.

Legal costs for Contentious Probate cases can vary widely depending on factors like the complexity of the case, the value of the assets being disputed, such as the value of property, shares, artwork or other chattels, and whether it goes to trial.

This depends on the outcome of the case. A court Will decide on who pays the costs and in what proportion. It’s common for the losing side to pay costs, however if the testator caused the proceedings, then the fees Will may be ordered to be paid from the estate.

A person can leave their estate in whichever way they feel, so there’s no legal requirement for family members to inherit. However, they can contest the Will if they believe they have not been left reasonable provision or if there are concerns about the validity of the Will.  A good Will file and evidence of why decisions are made in the way that they have is often the key in these disputes.

Always. Mediation can be a hugely effective alternative to litigation, which should always be a last resort.

In Mediation, the parties will come together alongside an independent mediator to come to a resolution that both parties agree on without the need for court intervention.

Mediation is effective in resolving disputes and potentially reducing the costs and time involved in Contentious Probate cases.  It can help to repair strained relationships, structure settlements in ways that a Court cannot and is generally a better, more positive way of resolving disputes. BTMK have been involved in hundreds of mediations and so we have expertise to keep the costs in check and the end in sight.