What is Contentious Probate?
Contentious probate involves any dispute relating to the administration of a deceased person’s estate.
This might be a dispute over the value of assets, the interpretation or validity of a Will or problems with difficult executors or feuding beneficiaries.
What does the law say?
Unlike many European countries which have certain rules regarding the rights of heirs to inherit, under English Law you have a fundamental right to leave your estate to whomever you desire. In legal terms this is known as ‘freedom of testamentary disposition’.
In other words, providing you are of sound mind and have not been unduly influenced or placed under duress, it is entirely up to you how your estate is disposed of, upon your death.
That said, there is one important rule that could potentially overrule your wishes – the Inheritance (Provision for Family & Dependants) Act 1975 applies to the estates of those who die and are classed as having resided in the UK.
Under this Act, certain protected persons may have grounds to contest a Will and be able to claim reasonable provision.
Examples of protected persons include a surviving spouse, a former spouse, a child, any person treated by the deceased as a child of the family, those who were maintained by the deceased immediately before their death and, since 1 January 1996, those who were living under the same roof as husband and wife for a period of two years immediately prior to the death.
What steps can I take to avoid my Will being challenged?
Firstly, it is important to ensure that it has been drawn up correctly.
A Will must meet a number of requirements.
- It must be signed in the presence of two witnesses
- Mental Capacity – a solicitor taking instructions is also to satisfy themselves that the person making the Will has mental capacity. If there is any doubt, they will seek a second opinion from the medical profession.
- Explanatory statement – although not a legal requirement, a statement, either within or ancillary to a Will, which explains the reasons for its contents and, in particular the reason why a particular person/people are not named as beneficiaries, can serve as an initial rebuttal, in defence of a prospective claim made under the Inheritance Act 1975
Despite taking steps to protect your Will, certain individuals might still seek to contest your Will.
Forgery and fraud are not uncommon. There have been instances of signatures on Wills being applied falsely.
Wills which may negatively affect a particular family member, could potentially be destroyed and their provisions replaced either by the intestacy rules or a more favourable earlier Will.
To ensure your Last Will and Testament has the best possible change of being acted upon you should:
- Instruct an experienced contentious probate solicitor to prepare your Will
- Ensure your solicitor keeps detailed notes of the points discussed
- Ensure the original Will is stored securely, for example with the solicitor who drafted it
- Review it regularly to take account of any change in relationships
- Keeping any copy of your Will confidential. Avoid discussing its contents with those who stand to benefit
At Mackrell Turner Garrett, our specialist contentious probate solicitors will be able to provide advice to protect your Will.
How do I challenge a Will?
Even though an individual has the right to dispose of his or her estate as they choose, if you expected to inherit and, for no obvious reason, appear to have been left out of a Will, you may wish to challenge its contents.
Wills which have been drafted by individuals late in life, which contain unexpected provisions, or which name a beneficiary who had only recently come into that person’s life, might attract suspicion.
For example, you may have maintained what you believed to be a close relationship with a relative and yet, behind your back, he or she was being subjected to false accusations about you. Your relative may have wrongly believed the rumours and changed their Will because of this.
Although the solicitor responsible for drafting the Will may have taken these instructions in good faith, a Will drafted in such circumstances might lead to a challenge under the Inheritance Act 1975.
The important thing to remember is if it seems wrong or suspicious, don’t take the Will at face value. Instead, seek specialist legal advice.
If you are classed as a ‘protected person’ under the Inheritance Act 1975 and do not believe that reasonable provision has been made for you, you should consider making a claim.
If you believe you have grounds to contest a Will, it is important to take prompt action.
At Mackrell Turner Garrett, our specialist contentious probate solicitors will be able to provide advice and, if there are grounds, we can help you formally challenge a Will.
If you need help with contentious probate contact us.