What is contentious probate?

When a loved one passes, it can be a very difficult time, even more so when the path to closure is made more complicated with claims of contentious probate. In this article we guide you through the process and help identify any of the obstacles you may face.  

What is probate?

Before looking at contentious probate, let’s first look at probate. Put simply, probate is the legal process that takes place when a person dies. It validates their Will and agrees on the administration of its content.

Is probate required under all circumstances?

Probate is not always required, but it is needed under two very specific, and very common, circumstances. First, when the deceased owned their home and had it registered solely in their name; and secondly, if they had any high-value assets which were also placed solely in their name. These assets include investment shares or a bank account with cash of over £30k.

What is the probate process?

Let us look at the ten key steps in a usual probate case:

1. The Will is confirmed and verified. If an executor of the Will is named, they are appointed. If there is no Will, the Letters of Administration process takes effect.
2. The Estate and all its assets are appraised, and an inventory is filed with the court.
3. Inheritance Tax forms must be submitted to HMRC and anything due, must be paid.
4. Application for a Grant of Probate is sent to the Probate Office. This is required to access bank accounts, sell assets and settle any debts.
5. The deceased’s banks, asset holders and any creditors are notified.
6. The Estate assets are made ready for distribution.
7. Any debts including utility bills are paid.
8. A Tax Return for the deceased is filed.
9. The Estate Accounts are prepared
10.  Any remaining assets are distributed to the beneficiaries of the Will.

What is contentious probate?

Contentious probate occurs when the administration of the Will, or the distribution of its contents are disputed. It can also occur when a person dies without leaving a Will. In cases like this, the deceased’s estate is shared according to the process of intestacy, which means the estate is naturally passed to the next of kin. This ruling can be challenged by those who believe they have a greater right to the estate.

Under what other circumstances can contentious probate take place?

A Will can be challenged on several grounds; here are a few of them:

• If it’s believed the deceased lacked mental capacity when they made the Will.
• If the person contesting the Will maintains the deceased did not approve its contents.
• If fraud or forgery is suspected.
• If the challenger of the Will is a family member who feels it does not make reasonable financial provision for them.  
• If correct ownership of a property is contested.
• If a death bed gift (a donation Mortis Causa or DMC) has been made then its validity must be checked.

Is contentious probate always hostile?

Not necessarily, contentious probate covers a raft of issues. These can include:

• Uncertainly surrounding the meaning of the Will which requires clarification.
• Mistakes in the Will that need to be rectified.
• Professional claims that call into account the inadequate drafting of the Will.
• If it transpires there is more than one Will.
• If a promise made during the deceased’s life, is not reflected in the Will. This promise must be significant enough to have a negative impact on the potential beneficiary if it isn’t honoured. For example, if they worked for the deceased for their entire life under the proviso they would be passed the business upon their death, and this doesn’t happen.

How does contentious probate affect the probate process?

If a Will is being challenged, the claim must be brought within six months of the Grant of Probate being obtained. Special permission can also be requested, meaning the dispute is raised before the claim can be issued.

How long will it take?

The timeframe of the probate process will increase if a contentious claim occurs, causing a delay of anything from a few months to several years. This depends on a number of factors including the amount of beneficiaries and size of the estate.

Will you have to go to court?

Solicitors will recommend the parties resolve their dispute before it reaches this stage as it’s advisable to avoid litigation where costs and timings can increase significantly. Negotiations and Mediations are highly encouraged.

Who is responsible for costs incurred?

Often, if the party disputing the Will is unsuccessful, they are then liable for the fees. Every case however is unique so there are no hard and fast rules when it comes to cost.

How common is contentious probate?

Cases of contentious probate are on the rise. A report published by IRN Legal Reports found that work in the contentious wills, trusts and probate sector had increased by 4.3% in 2021 and was forecast to increase by a further 5.2% in 2022.*

*Source: ibblaw.co.uk

Where can I seek advice?

You should contact a solicitor to help navigate a contentious probate claim. Dispute solicitors specialise in this area and can steer the process with the expertise needed.  At Jefferies, we understand the various challenges and changes that life throws in our direction, and support and diplomacy are paramount. Our Wills, Probate and Lasting Powers of Attorney Team are extremely experienced in delivering high-quality work across this practice area and are always ready to take your call.

Contact Jefferies

Victoria Scott deals with a variety of contentious probate matters, acting for Personal Representatives, beneficiaries and persons who may not be beneficiaries but who may wish to bring a claim against an estate. 

The nature of cases she has dealt with include arguments over the validity of wills (for various reasons including arguments over testamentary capacity and undue influence), claims made against an estate where no or inadequate financial provision has been made and claims concerning misappropriation of funds before and after death.

If you are facing a contentious probate case, Jefferies is here to help. We can provide professional, thoughtful advice and excellent management of the process, helping you reach a timely resolution.

Find out more here and get in touch today:

Wills, Probate & Lasting Powers of Attorney

The contents of this article are for the purpose of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.