Contentious Probate

by | Apr 26 2021 | Popular, Probate, Wills & Probate

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Kitty Leask LGBT Lawyers
By Kitty Leask
Kitty is the latest addition to LGBT Lawyers' team. A member of the LGBT community herself, Kitty dedicates her time to promoting the LGBT fight for equality and is here to help all of our clients find the right lawyer to support their case.

what is contentious probate? | 5 minute read

When someone disagrees with how a loved one’s estate is handled after they pass away, this is known as contentious probate. Contentious probate is an umbrella term for a variety of different disputes which could arise during the estate administration process. 

The most common type of contentious probate dispute is when the deceased’s will is deemed to be invalid or if someone feels as though they should have been better provided for in the will (usually by a spouse or parent).

Contentious probate can also cover disputes such as:

  • The authority of the executor of the estate 
  • Whether or not the deceased’s will is valid, for example, if you think there was foul play when writing the will
  • Disagreeing on the correct distribution of the estate (and applying to the court for a final decision)
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When is a will valid?

In the UK, a will is valid when:

– The person making the will is over the age of 18
– It is signed in the presence of two witnesses
– The person writing the will has total mental capacity and has not been coerced into writing it. 

The validity of the will is important, and can be contested when the writer of the will passes away. This might happen if there is an odd or sudden amendment to the will, which leaves out what people expected it to contain.

What are the different types of contentious probate claims?

As previously stated, contentious probate covers many different claims that could arise when someone’s estate is being handled. The most common contentious probate claims include:

1) A Construction Claim; this is where you can claim that the will is not clear and needs to be made certain.
2) A Rectification Claim; where you can claim to rectify the will if there is a mistake in the content.
3) Proprietary Estoppel; where you can claim to honour the deceased’s promise, which was not reflected in their will.
4) A Constructive or Resulting Trust Claim; when there is a dispute over property ownership in the will.
5) Executor Disputes; when an executor(s) is mishandling the estate, someone may want to dispute this and have them removed as executor.

LGBT Lawyers a couple arguing over contentious probate

When can i remove an executor from an estate?

In some contentious probate cases, an executor may be failing in their duty of care towards the estate. In this case, you may want to have the executor’s responsibilities removed from them.

An executor will automatically have their responsibility for the estate removed if they are:

  1. Deceased
  2. Living outside of the UK for more than 12 months 
  3. Unable to act on behalf of the estate due to a disability

You can still apply to have the executor removed if: 

  1. They are refusing to act upon their duties
  2. Have acted in a way that does not benefit the estate and beneficiaries 
  3. They are unfit to act, e.g. if they have committed a criminal offence or are favouring one beneficiary over the other.  
  4. A general, unanimous agreement between all parties that the executor should be removed/ replaced. 

What if someone dies without a will?

Intestacy is the legal definition for when a person dies without leaving a valid will. Unfortunately, if you die in a state of intestacy, your estate will have to follow a strict set of guidelines laid out by the government, so you risk your estate ending up in the wrong hands.

Contentious probate disputes could arise when a family member dies in a state of intestacy. This may be because of:

  • Disputes over who should administer the estate (this won’t have been specified if there is no will) 
  • If there is an unmarried partner involved who hasn’t been provided for in the will (intestacy means an unmarried partner won’t automatically inherit from the estate)
  • If there is a child/dependant involved who hasn’t been provided for in the will 

Contesting probate when there is no will to back up your claim can be tricky, especially when the estate is particularly large or complex.

A couple talks to a solicitor about their contentious probate

Why are contentious probate claims on the rise?

As families become more diverse and complex, disputes over wills and inheritance are gradually increasing. This may be because of:

  • The number of legal services available in the UK. More and more people are aware of their legal rights and are more likely to make legal claims if they think they need to do so.
  • More people are writing “DIY” wills without using a solicitor, so more and more wills are emerging as invalid.
  • Divorce rates in the UK are at 42%. This means the number of people re-marrying also contributes to contentious probate rates, as many people fail to write a new will after they get a divorce.

When do i need a contentious probate lawyer?

If disputes surrounding an estate aren’t handled properly, they can end up becoming time-consuming and expensive. With the appropriate legal advice, most contentious probate cases can be resolved without the need for court interaction.  

A lawyer would also be able to act as an independent administrator to deal with the estate administration if the named executors of the estate can’t reach an agreement or have been removed as executors. 

SOMETHING NOT QUITE RIGHT?

Get in touch today if you think you have a claim for contentious probate and our team will connect you with an SRA-regulated solicitor.

Frequently asked questions 

Do i qualify to make a claim?

To make a contentious probate claim you need to be one of the following:

  • The deceased’s former spouse or partner 
  • A partner who lived with the deceased for at least two years immediately before the death
  • The deceased’s child or person who was treated as a child
  • A dependant of the deceased 
  • Someone who was supported financially by the deceased
Will i have to go to court?

Generally, you won’t need to go to court for your contentious probate claim. However, this depends entirely on which claim you are going to make and what your desired outcome is.

Some probate disputes can be resolved through negotiating or going to mediation. However, if the disputes can’t resolve themselves, then the court may need to intervene.

Am i guaranteed the outcome I want?

Contesting a will, trust or inheritance is not going to be an easy process.

The largest problem with contentious probate is that it can be quite difficult to prove. Obviously, the deceased isn’t here to comment on the will, so if issues arise, it’s one party’s word against the other’s.

It’s for this reason that it’s important to involve a lawyer to guide you through the process, and reasonably outline what your options will be.

What are the time restrictions surrounding contentious probate?

Typically, you’ll need to make a contentious probate claim within the first 6 months of the grant of probate.

A contentious probate claim takes approximately 12-18 months to come to fruition.

Need an LGBT Lawyer on your side?

We’re here to assist. Just tell us what you need help with and we’ll call you back to arrange a meeting.

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