Contentious Probate and Will Disputes

Contentious probate generally refers to a legal dispute that arises in respect of a deceased’s estate , often involving disagreements over the validity of a will, the distribution of an estate, or the interpretation of the deceased person’s wishes. Cases of this kind typically occur when one or more parties (such as family members, beneficiaries, or executors) challenge the terms of the will or the way the estate is being administered.

In most jurisdictions, a testator (the person creating the will) has the legal right to distribute their estate according to their wishes, and they are not required to leave anything to family members, even if they have close relatives like children, parents, or spouses. This is known as ‘testamentary freedom’. However there are legal protections for certain family members, particularly spouses and children, that may limit a testator’s ability to exclude them completely.

Testamentary capacity refers to a person’s ability to make a valid will by understanding the effect of his wishes being carried out, the extent of the property he is disposing of and the nature of any claims that persons could bring against his estate.

The Inheritance (Provision for Family and Dependants) Act 1975 makes provision for a court to vary the distribution of the estate of a deceased person in certain circumstances. Potential claimants under the act are:

• A spouse or civil partner
• A former spouse of civil partner who has not remarried or repartnered
• A person living as a cohabitant
• A child
• Someone who is treated as a child of the deceased or being financially maintained

There are criteria and requirements in each of these categories which must be satisfied in order to bring a claim, and various considerations which a court will have regard to.

Claims of this kind must be brought promptly as there is generally a six month time limit after probate has been granted, although a court may grant an extension in certain cases.

Proprietary estoppel is not just limited to contentious probate disputes. In the realm of contentious probate, this type of dispute typically arises when someone has been assured that they will inherit or gain some property from the deceased), but the will does not (or as the case may be, the intestacy rules do not) reflect that expectation. If the person has relied on this expectation to their detriment (e.g. by making significant sacrifices or investments in the property), they may invoke proprietary estoppel to claim a right to the property, even if it is not formally included in the will.

Costs can vary significantly depending on various factors, such as the complexity of the case, whether the dispute is settled out of court, and whether legal representation is required. The length of time a contentious probate dispute can take also impacts the cost. A straightforward case might be resolved within 6 months to a year, while more complex cases, especially those involving court hearings, may take 1-3 years. Because of the significant potential costs involved, it’s crucial to seek legal advice early on to assess the merits to establish whether contesting the will is financially worthwhile. If you lose the case, you may be required to pay the other party’s legal costs, which can be substantial.