Wills Disputes & Contentious Probate

Disputes over inheritance are becoming more and more common.

So, whether you have concerns about the validity of a Will, the interpretation of a Will, the way an estate or trust is being administered or have not received what you expected by way of inheritance, our specialist team can assist.

BTMK is one of the few firms in the region that has a highly experienced litigation solicitor specialising in such things as claims or defences under the Inheritance Act 1975, challenges to the validity of a Will, and disputes over forged Wills and trusts.

We also have years of experience in dealing with the mediation process, an alternative dispute resolution method which is often ideal for Will disputes. However, where alternative dispute resolution is not possible, we have the experience and expertise to fight your corner, so that you get the best possible outcome.

More in Our Wills Disputes & Contentious Probate Section

What is Contentious Probate?

In England and Wales, when a person dies the legal process of dealing with their assets, also known as their estate, is called probate. The Grant of Probate or Letters of Administration (when there is no Will) gives an executor/personal representative the legal right to deal with the estate.

When there is a dispute over the way the estate is distributed or the way an estate is being handled/dealt with, or if a Will is considered invalid for example, it is known as Contentious Probate.

Contentious Probate disputes can also include contesting a Will’s validity and disputes that arise when a person dies intestate, that is when a person dies without a Will. You may feel an executor is not doing their duty in the right way, or a Will may be lost or damaged. There are many types of disputes over Wills and estates can be very complex.

Contentious Probate disputes have surged over the last few years with thousands disputing Wills/estates every year. These disputes have been fuelled by recent factors such as larger estates due to the growing property market, the economic climate having an impact of those not inheriting and the need to bring a claim, blended families as a result of second marriages with children/step children being disinherited, incorrect Wills made at home without specialist advice and a rise in Dementia/Alzheimer’s resulting in more claims being brought in relation to the validity of a Wills and concerns over undue influence or capacity.

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The Grounds for Contesting a Will

As specialists in this area, we understand that when a person dies it is a highly emotional time. If you feel you have been unfairly treated in the distribution of the estate, this can be even harder.

Under England and Wales law, a person has the freedom to leave their estate to anyone they choose. They are not legally required to leave their estate to a spouse, children, grandchildren, or other dependents.

However, there are circumstances in which you might be able to contest a Will/estate. Generally, to contest a Will, it must either be invalid in some way or doesn’t provide reasonable financial provision under the Inheritance Act for an individual who needs maintaining/financial provision from an estate. For example:

  • If the person lacked mental capacity
    Under UK and Wales law, the person making the Will must be of ‘sound mind, memory and understanding.’
  • Undue influence
    A Will can be challenged if a person exerts undue influence on the distribution of assets against the testator’s wishes.
  • The person making the will did not fully understand
    For a Will to be valid, a person making the Will must have understood they are making a Will, understand the effects of making one and approved the contents
  • Complies with the Wills Act 1837
    This means the Will must be properly signed and properly witnessed, in accordance with the law.
  • The Will was forged or fraudulent
    If either the entire Will is forged or the signature of the person who made the Will is a forgery, the Will is invalid.
  • If you were financially dependent on the deceased and not adequately provided for

While a person has freedom to leave their estate as they choose, the Inheritance (Provision for Family and Dependants) Act 1975 does allow for reasonable financial provision for those who were financially dependent in certain circumstances.

You cannot contest a Will before the person has died.

The Inheritance Act and ‘Reasonable Financial Provision’

Under the Inheritance (Provision for Family and Dependants) Act 1975 you can challenge the distribution of an estate if for example, you feel you were entitled to more or were left out under the intestacy rules.

To be entitled to make a claim you must fall into one of the following categories:

  • A spouse or civil partner of the deceased
  • A former spouse or civil partner of the deceased and have not remarried or entered into another civil partnership
  • Were living with the deceased for at least two years before their death
  • Are a child of the deceased
  • Were treated as the deceased’s child, for example as a stepchild, adopted child or foster child
  • Were financially maintained or partly maintained by the deceased

Generally, for a claim under the Inheritance Act to be successful, you would need to show that you had a reasonable expectation of having your living costs met by the deceased. You have six months from the Grant of Probate/Letters of Administration to issue a claim under the Inheritance Act. After six months you will need a court’s permission to make a claim out of time.

You cannot challenge a Will under the Inheritance Act just because you feel the Will is unfair or not as you expected.

Defending a Claim

Unless there is a claim of wrongdoing, an executor won’t be the one defending a claim. An executor may however have to defend a claim on behalf of the estate or bring a claim on behalf of the estate. An executor’s role is to always act in the best interests of the estate, and this includes when defending a claim against it.

If you are the beneficiary of an estate, you may need to defend a claim under the Inheritance Act.

Whatever type of claim you need to defend, our specialist solicitors can help you.

If there is a case, mediation may be the appropriate route. However, in the event that a court decision is required, we can have the experience and expertise to support you every step of the way.

When There Isn’t a Will

When a person dies and hasn’t made a Will, they are known as being intestate. The estate is distributed following the rule of intestacy, which follows a strict order of inheritance.

Other people who the deceased may have wanted to share some of their estate with will not be entitled to receive anything, for example:

  • Unmarried partners
  • Same-sex partners
  • Relations through marriage
  • Close friends
  • Foster children not legally adopted

The rules of intestacy also mean that people the deceased might not have wanted to leave their estate to will benefit from their estate for example an estranged parent/sibling/child.

It may be possible to make a claim under the Inheritance Act 1975. But it’s why making a Will is so important.

Mistakes With Wills, Including Lost or Damaged Wills

Lost, damaged or mistakes in Wills can cause additional problems and requires specialist expertise.

A national ‘central store’ of Wills doesn’t exist, so while you may be aware of a Will’s existence, it might not be possible to find it among the deceased’s personal documents.

If a Will has been lost it is considered that the testator was attempting to revoke it by destroying it.

Alternatively, you might want to contest a Will on the grounds that it is confusing, or rectify a mistake in the Will’s content. 

The team at BTMK have experience in all such matters of contentious probate.

For example, if a Will is lost we can make an application to the probate registry for an Order allowing probate using a draft copy or reconstruction of the Will. When the original Will has been destroyed, we can make an application to court for evidence of the Will’s contents to be accepted in place of the original Will, if the destruction was testator error.

If something has been omitted as a result of a clerical error, we can help you seek a rectification under section 20 of the Administration of Justice Act 1982.

Timescales of Contesting a Will

If you wish to contest a Will or bring a claim against an estate, it’s vital to seek legal advice as soon as possible. Different rules apply, depending on the type of claim you are making:

Contesting the validity of a Will – there is technically no strict time limit, but it is very important to act as quickly as possible to stop the Grant of Probate being issued or an estate being administered It’s much harder to bring a claim if the estate assets have been distributed.

Reasonable financial provision – claims under the Inheritance (Provision for Family and Dependants) Act 1975 have 6 months from the date of the grant of probate.

Rectifying a mistake in a Will – under section 20 of the Administration of Justice Act 1982, you have 6 months from the date of the grant of probate.

In some circumstances, with the court’s permission, these deadlines can be extended.

Can a Will Be Challenged After Probate Has Been Granted?

If you think you have grounds for contesting a Will, you need to act quickly. While it is legally possible to contest a Will after probate has been granted, it’s much harder after the estate has been distributed. There is the risk that the assets have been used/spent elsewhere once distributed to beneficiaries. 

If you think you have a case to contest a Will, get in touch with our specialists as soon as possible.

The Costs of Contesting a Will

As every claim is different and some cases involve more work than others, the costs can vary.

When you speak to our specialist team we’ll advise you whether we feel you have a strong case.

The responsibility for costs after a claim is at the discretion of the court. But generally, the losing party will be ordered to pay the winning parties’ costs.

For example, if you successfully challenged a will, your costs will likely be payable by the estate.

If you are unsuccessful in contesting a Will then (with certain exceptions) you will likely be required to pay your costs and any costs incurred by the successful party.

Litigation costs are often high and so at BTMK we always try to successfully resolve claims and counter claims through alternative measures, such as mediation, where possible.

FAQs

What Is Contentious Probate?

Contentious probate refers to legal disputes that arise over the administration of a deceased person’s estate. This includes issues related to the validity of the Will, distribution of assets, and executor disputes.

What Are the Common Reasons for Contentious Probate?

Disputes often arise due to concerns about the validity of the Will, allegations of undue influence or coercion, mental capacity, mistakes or challenges to the executor’s actions.

It’s also very common for people to bring claims under the Inheritance Act 1975, which allows for certain parties to be given ‘reasonable financial provision’ in a person’ s estate.

How Do I Contest a Will?

To contest a Will, you typically need to have a connection, such as being a beneficiary or an interested party. Grounds for contesting a Will generally hinge the validity of a Will or not being left ‘reasonable financial provision’. For example:

  • If the person lacked mental capacity.
  • Undue influence or coercion.
  • The person making the Will did not fully understand it effects or what they were making.
  • Does not comply with the Wills Act 1837, for example it’s not signed.
  • The Will was forged or fraudulent.
  • If you were financially dependent on the deceased and not adequately provided for.
What Steps Should I Take If I Suspect a Problem in The Probate Process?

If you suspect a problem, it’s crucial to seek legal advice promptly. Document any evidence or concerns you have and discuss them with a lawyer who can assess the situation and advise you on the appropriate course of action.

How Long Does Contentious Probate Take to Resolve?

The duration of contentious probate proceedings can vary widely depending on the complexity of the case, the willingness of parties to negotiate, and court schedules. Some disputes may be resolved relatively quickly through mediation or negotiation, while others may require litigation and could take months or even years to resolve.

How Much Does It Cost to Contest a Will?

The cost of contesting a Will can vary depending on factors such as the complexity of the case, the need for expert testimony, and whether the matter goes to trial. Legal fees, court costs, and other expenses should be considered when determining the potential cost of contesting a Will.

Do I Need a Lawyer for Contentious Probate Matters?

Contentious Probate is a complex area of law and requires specialist knowledge. Having an expert probate lawyer is vital in navigating the complexities of the legal process, protecting your inheritance, following the correct court procedures and deadlines and getting the best possible outcome.

Can A Will Be Contested After Probate Has Been Granted?

Yes, it’s possible to contest a Will even after probate has been granted, but the process becomes more complicated once the estate has been distributed.

What are the alternatives to going to court for resolving probate disputes?

Alternative dispute resolution methods like mediation or arbitration offer more amicable and cost-effective ways to resolve probate disputes. These methods encourage negotiation and compromise outside of the courtroom, potentially avoiding lengthy litigation and reaching a settlement a court may not have the powers to make itself.

What Happens If There Is No Valid Will in Contentious Probate Cases?

In cases where there is no valid Will, the estate is distributed according to intestacy laws, which outline how assets are divided among surviving family members. Disputes can still arise over the rightful beneficiaries, potentially leading to claims under the Inheritance Act.

Can I Remove an Executor If I Believe They Are Not Fulfilling Their Duties?

You can apply to the court to remove an executor if they are not fulfilling their duties or are acting improperly. Reasons for removal may include mismanagement of estate assets, conflicts of interest, or failure to act in the best interests of the beneficiaries/estate.

What Happens If the Deceased Person Had Debts or Liabilities?

Debts and liabilities of the deceased are typically settled from the estate’s assets before distribution to beneficiaries. If the estate lacks sufficient funds to cover debts, creditors may make claims against the estate, potentially affecting the inheritance of beneficiaries.

Saul Caplan

Wills, Inheritance, Trusts and Probate | BTMK Goodson

Adam Fleming

Litigation & Dispute Resolution | BTMK Todmans

Aimee Hart

Litigation & Dispute Resolution | BTMK Todmans

Nabiha Umer

Private Client | BTMK Todmans

Sophie Bacon

Private Client | BTMK Todmans

Megan McKinlay

Wills, Inheritance, Trusts and Probate | BTMK Goodson

Kavita Ryatt

Wills, Inheritance, Trusts and Probate | BTMK Goodson

Gabriella Shepherd

Litigation & Dispute Resolution | BTMK Todmans

Jessica Dawkins

Wills, Inheritance, Trusts and Probate | BTMK Goodson

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