Giles Wilson
Contentious Probate
Contentious Probate

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Losing someone important to you is never easy. But emotions can run even higher if you believe that the distribution of their estate is not being handled correctly.

Whether you suspect the details of the Will don’t reflect your loved one’s final wishes, the person responsible for the estate is not fulfilling their duties or you feel you have not been fairly provided for, we give you the guidance and reassurance to stand up for what’s rightfully yours.

Speak to our specialist solicitors in contentious probate today on 01702 477106 for clear advice to ensure the execution of a Will in the best interests of the deceased.

What is Contentious Probate?

Contentious probate relates to any dispute that arises as a result of how a person’s estate is administered when they pass away. This might involve contesting a Will, but in cases where an individual dies intestate (that is, without a Will), a contentious probate challenge can still be lodged.

For example, let’s say a father passes away intestate, resulting in his assets being split evenly between his two children. However, one of these children had been living with their father at the time of his passing, and was, therefore, dependent on his financial support. This child might contest the intestacy provision from the father’s estate, as they feel that reasonable financial provision has not been made for them.

This also means that when someone dies intestate, where the estate would automatically pass to certain beneficiaries (commonly spouses, civil partners or children), other categories of people can contest the distribution of the estate if they feel their financial needs have not been provided for.

Who is the executor / administrator?

The executor or the administrator is a person who is responsible for distributing the deceased’s estate in accordance with the terms of the Will or the rules of Intestacy. They are also the people who apply for probate when this is required.

There can be up to 4 executors, and when drafting a Will it is possible to outline if only one has to carry out the appointed duties, or if multiple executors have to work together. When someone passes away intestate, an administrator is instead appointed to perform this role and administer the estate.

The executor or administrator is often a family member or close friend, but solicitors are also often instructed due to the complex nature of these cases. This responsibility of this role starts on the deceased’s date of death and the executor or administrator has personal liability for ensuring that the estate is administered correctly, to include paying the appropriate level of tax.

What are the reasons you might contest probate?

In short, there are two fundamental reasons you might lodge a contentious probate claim:

  1. You believe the deceased’s Will is invalid or is not being adhered to; or
  2. You believe ‘reasonable financial provision’ has not been made for you in accordance with The Inheritance (Provision for Family & Dependants) Act 1975

Invalid Wills
There are several reasons why a Will may be deemed invalid when making a contentious probate claim:

  • The testator lacked the necessary testamentary capacity to understand its consequences while making it, as a result of old age, mental illness, medication or other causes
  • The testator lacked the knowledge of its contents, or did not approve of the terms
  • The testator was unduly influenced or coerced into making it
  • There is a significant discrepancy between the true intentions of the testator and the legal consequences of the Will as written
  • It was not executed correctly under the recognised criteria, such as if the testator was not at least 18 when it was made, they did not sign it or used an incorrect signature, or it was not signed in front of two independent witnesses
  • It was forged by someone else or the testator’s signature was forged
  • It has been damaged or scribbled over (as in the recent case regarding Aretha Franklin’s estate, although please note that this is a US legal case)

We discuss these in greater detail on our contesting a Will page.

Any of these reasons can be put forward as a means to contest the probate of an estate. If you wish to take this action, it is a good idea to speak to a specialist contentious probate solicitor to determine if your claim has a chance of success.

Mishandling of an Estate
Furthermore, many contentious probate disputes are brought when the executor or administrator does not follow the terms of the Will (or rules of Intestacy), or does not act in accordance with their financial or other duties (which go with the role).

In these situations, you may be entitled to make a claim against the executor or administrator personally, or it may be possible to apply to Court to have them removed from their role (section 50 of the Administration of Justice Act 1985). There are strict deadlines in making any Court application, so ensure that you take legal advice from a specialist contentious probate solicitor as soon as you realise there is an issue.

The Inheritance (Provision for Family & Dependants) Act 1975 outlines the rules regarding who can contest the terms of a loved one’s Will (or rules of Intestacy if there is no Will) if they feel they have not been fairly provided for financially.

The only people who may launch a contentious probate claim via this Act are:

  • The spouse or civil partner of the deceased
  • A former spouse or civil partner (when the deceased had not remarried or entered another civil partnership prior to their passing)
  • A child of the deceased
  • Any person treated by the deceased as a child, whether it was via a marriage/civil partnership or another member of the family that the deceased acted as a parent of
  • Any person who, at the time of the deceased’s passing, was being wholly or partly maintained by the deceased

In order to determine if reasonable financial provision has been made, the Court will take into account many factors including:

  • The financial needs of the person(s) making the claim
  • The financial needs of the beneficiaries of the estate
  • The responsibilities the deceased had towards the person(s) making a claim or the beneficiaries
  • The size and nature of the estate
  • Any physical or mental disabilities of claimants or beneficiaries
  • The conduct of any person making a claim or any other relevant person

It is important to note that if you wish to make a claim under The Inheritance (Provision for Family & Dependants) Act, you have a 6-month deadline to do this from the Grant of Probate (save where there are exceptional circumstances).

We therefore recommend you speak to a contentious probate solicitor as soon as possible if you have concerns. This will help to establish whether you have a claim and a challenge can be lodged before the deadline passes.

When should you consider contentious probate action?

Circumstances where you might consider contentious probate proceedings are varied, and may include the following:

  • You believe the Will the deceased left behind is suspicious due to its content, timing or choice of executor (among other reasons)
  • A percentage of the deceased’s estate was spent by someone other than the deceased prior to their death, reducing its value to you as a beneficiary
  • You haven’t been included in a person’s Will when you expected to be, or have been bequeathed less than you anticipated
  • You were financially supported by the deceased prior to their death, but received nothing from their estate
  • You’re an executor, but are in a dispute over the actions of other executors or beneficiaries (e.g. they are administering the estate inappropriately)
  • You or another vulnerable person was manipulated into a Deed of Variation to forgo or reduce your inheritance, without your knowledge or understanding of how much you stood to inherit

This is simply a snapshot of the situations where a contentious probate claim may be made, but the scenarios are varied. You should always reach out to a specialist solicitor if you believe you have a legitimate claim.

Can a Will be overturned after probate is granted?

Yes, it is possible for you to overturn it after the Grant of Probate has been approved.

However, it is highly recommended that you speak to a contentious probate solicitor as soon as possible in making this claim. The longer you wait, the less easy it is to prove lack of validity or fraud, and the more difficult it is to recover the assets to which you’re entitled.

How to make a contentious probate claim

Our solicitors at Giles Wilson go through a clear, considered process in handling any contentious probate claim to help ensure you receive the outcome you’re due. The law and intricacies behind probate make the support of an experienced specialist in this area crucial, so you can navigate all steps with real assurance.

Making your contentious probate claim will begin with a consultation, followed by any urgent interim legal action that’s required, such as the lodging of a caveat or other court action. We will then attempt to reach a resolution that suits your best interests through negotiation or mediation, and, as a last resort, court proceedings.

Consultation
During the initial consultation with your solicitor, we will determine whether you have appropriate grounds to make a claim.

Interim legal action
If the Grant of Probate is yet to be issued, we can consider lodging a caveat, which puts the process of issuing this on hold for a fixed term of 6 months to help resolve any outstanding issues. We recommend that you do not lodge a caveat without first taking legal advice, because there can be financial and cost consequences in doing so wrongly. Speaking to a specialist in contentious probate is important to avoid situations like this which could result in an unnecessary drain on your time and money.

It may also be necessary to take urgent Court action to freeze assets in the estate if you fear that they are about to be distributed wrongly.

Learn more about Grants of Probate and Caveats.

Mediation
Rather than proceed immediately to court, mediation can offer an alternative to resolve your dispute, bringing all parties involved together to negotiate and discuss your claim and reach a lasting outcome. This can often prove quicker, cheaper and less acrimonious than going to court.

Court Proceedings
If your contentious probate dispute does need to be settled in court, our solicitors at Giles Wilson will represent your interests and help achieve the outcome you deserve.

How long do contentious probate disputes last?

There is no easy answer to this question, as the length of contentious probate proceedings depend on numerous factors, including the complexity and size of the deceased’s estate, the number of parties involved and whether the case extends to court.

Simple estates can see cases resolved in under 3 months, while more complex claims can extend to between 6 months and a year, if not longer. Your solicitors will advise as to how long they believe it will take to reach a resolution to ensure you’re informed at every stage.

The costs of contentious probate proceedings

The cost of contentious probate claims are difficult to estimate accurately, as a number of factors are relevant to include:

  • The time it takes to complete proceedings
  • Whether the case needs to go to court
  • The size of the estate
  • Whom you choose to represent you

In many contentious probate claims, the Court can issue an order that the costs are to be paid out of the estate. Alternatively, the opposing party may bear the costs if it is determined that they had mishandled administering the estate or if they did not conduct themselves properly in the litigation.

However, if the Court concludes that the contentious probate claim was not justified, it can order that the costs of litigation are met by the individuals who lodged them. That’s why it’s vital to speak to an experienced solicitor at an early stage who will give you an honest, fair assessment of your claim’s chances.

The Association of Contentious Trust and Probate Specialists

The Association of Contentious Trust and Probate Specialists (ACTAPS) was established in September 1997 as a professional forum for solicitors specialising in contentious probate and trust work. Our Partner and Head of the Contentious Private Client Department, Philip Giles, has been a member of this association for many years, signalling him as a specialist in this complex area of law.

If you’d like to learn more about the process behind contentious probate claims, please read the ACTAPS guidelines. Or speak to our contentious probate solicitors who can help you understand each stage step-by-step.

Speak to Specialist Contentious Probate Solicitors

Believing that a loved one’s estate is not being managed fairly can lead to even more distress at an already emotional time. Our Contentious Probate experts work closely with you to understand your grievances, determine if you have a case and guide you through every step of the journey to securing your fair share from the estate.

Get in touch with our experienced contentious probate solicitors on 01702 477106 to discuss you claim in greater detail. Alternatively, drop into one of our offices in Leigh-on-Sea to talk to one of our specialists directly.

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Awards & Recognitions

The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.

Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson