What is Contentious Probate?

What is Contentious Probate?

The process of getting probate and administering an estate can be challenging even when matters are relatively simple. However, there are situations when disagreements arise over how the estate is administered. For example, you may feel that a will is invalid or that insufficient provision has been made for specific individuals. A contentious probate claim may help to rectify this.

As local solicitors in Devon and Somerset, we have a dedicated team of contentious probate solicitors who know the issues that can arise and how to deal with them.

Can I challenge a will?

If you believe a will (or intestacy) has not made the provisions you expected then it is certainly worth discussing your concerns with one of our specialist solicitors.

Individuals (in England and Wales) can make a will in whatever terms they want. A person may have a perfectly valid will despite having left out their children or their spouse.

The way a person provides their instructions, the way the will is written and signed, and the way the will is then stored are all factors that may have a bearing on the question of validity.

Examples of the possible ways to challenge a will’s validity include:

  • Lack of testamentary capacity. For example, the person making the will was living with severe Alzheimer’s. 
  • Undue influence. For example, an unusually large provision was made for a carer at the expense of that person’s family.
  • Suspicion of fraud or forgery.
  • Lack of knowledge and approval of the contents of the will. For example, the person was very unlikely to have agreed the terms of the will.
  • The will wasn’t correctly witnessed or executed.
  • Only a copy of the will was found.

Importantly, even if a will is valid, a person may still be able to challenge the way an estate has been left.

If you believe that you have been unfairly provided for you may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. 

People who can claim under the Inheritance Act

Only if you fall into certain categories can you bring a 1975 Act Claim:

  • A spouse or a former spouse (but only if you haven’t remarried).
  • A partner living with the deceased for at least two years before their death.
  • A child or someone who has been treated like a child by the deceased and their family.
  • A person receiving financial support from the deceased.

A claim under this act will only be successful if the Court agrees that reasonable financial provision was not made. The provision a Court can make is more generous for a spouse, whereas all other categories are limited by what would be considered for that person’s maintenance.

These kinds of claims are time limited which means it is vital that you speak to a specialist at the earliest opportunity.

Other types of challenges of contentious probate

Even if there are no inheritance issues, you may wish to challenge how the personal representatives have dealt with the estate. For example, you may be frustrated with the slow rate of progress or feel you’re not being kept informed. You may also disagree with the best way to administer the estate.

Our specialist team can step in to negotiate between personal representatives and beneficiaries or help to clarify the terms of the will if they’re unclear.

Interest actions

When someone dies without making a will, there may be a dispute about who administers the estate. For example, an interest action could arise if you doubt the validity of the deceased’s marriage when their spouse would be the beneficiary.

Rectification

Rectification may be available if you believe you’ve been left out of a will because of a clerical error or a failure to understand the deceased’s wishes. If that’s the case, you may be able to make a claim.

Let Everys Solicitors guide you

Probate isn’t a swift process, taking anything from months to a year or longer if there are any disputes. At Everys, we can guide you through every step of the process or help you make a claim. Our specialist contentious probate solicitor and Partner, Michael Brierley, will be happy to help you. You can email him at michael.brierley@everys.co.uk or call 01460 270293.

If you would like help with drafting your own will to prevent your beneficiaries from having to contest it, please contact a member of our Private Client team at PrivateClientNewEnquiries@everys.co.uk or call free on 0800 8840 640.

As a leading firm of solicitors in Devon and Somerset, we’re waiting to hear from you, so contact us today or drop into your local office. Our offices in Devon and Somerset are located at Crewkerne, Exeter, Exmouth, Honiton, Seaton, Sidmouth, and Taunton.