Article by Mark Terrar, Partner at Meridian Private Client LLP and listed specialist in the Certainty Contentious Probate Hub & Area
What is Contentious Probate?
Contentious Probate can be defined as a dispute arising out of someone’s estate after they have passed away.
There has in recent years been a considerable build-up of wealth for a large section of the population. A higher proportion of people are now in a position to leave valuable assets to others upon their death. To that end, it is becoming increasingly common for disputes to arise in relation to a deceased’s estate. There are many claims that can arise as a result. This can range from challenging the validity of a Will to defending a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.
Disputes of this nature are varied; no two Contentious Probate matters are the same. Below are some examples of the types of cases a specialist Contentious Probate solicitor may be instructed to provide advice upon:-
1. Challenges over the validity of a Will –
Disputes concerning the validity of a Will can arise in a number of ways, below are typical examples of how a Will may be challenged:-
- Where a Will is asserted to not have been signed or witnessed correctly;
- A person did not have the mental capacity to create a valid Will;
- A person was being coerced into the creation of a Will;
- A person did not know or approve the contents of the Will; or
- There may have been a later Will in existence.
2. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 –
The Inheritance Act allows for specific categories of people to apply for reasonable financial provision from a deceased person’s estate on the basis that they have not been left anything or have only been left an insufficient amount. The Act allows the court to exercise discretion and award reasonable financial provision out of a deceased’s estate, for example an estranged son gets a share of his father’s estate.
Claims under the Inheritance Act have significantly increased in recent years, the average value of an estate has risen considerably coupled with an increased number of divorces has led to increasingly complex family structures.
3. Disputes over the administration or distribution of a deceased’s estate – Sometimes those appointed refuse to organise the estate, do it wrongly, take too much time, or seek to use assets and money for their own purposes. Possible disputes of this nature could involve:-
- Seeking to obtain a Grant of Probate where there is opposition to its issue;
- Seeking to block a Grant of Probate in circumstances where there is a belief there is not a valid Will or an incorrect individual has applied for it;
- Claims against the personal representative appointed;
- The removal and appointment of a new personal representative; or
- An application to the Court seeking guidance as to proceed in the administration of the deceased’s estate.
In cases where it is likely Court involvement is required, it is strongly suggested that interested parties seek the guidance of a Contentious Probate specialist. There are many cost consequences that a party may be subjected to and strict procedures that are to be adhered to. A specialist advisor would be well placed to guide an individual through this process whilst relieving the individual of many of the stresses associated with a matter of this nature.
4. Claims against Professional advisors – those who prepared the Will
Claims may be made against professional advisors in various situations:
- Claims against those drafting and advising in relation to the creation of Wills, trusts and estate planning where the advice later transpires to be negligent;
- Claims against professionals acting as personal representatives/trustees; and
- Claims against professionals for negligent advice to executors/trustees.
Anyone who suffers a financial loss as a result of the above may well be entitled to make a claim.
What can you do?
There may be situations whereby Contentious Probate matters can be predicted, for example, an individual who disinherits their children, especially when there are step-children or children from a previous marriage involved. If you are aware of a pending Contentious Probate issue or have any concerns that resemble any of the above situations, it would be beneficial in the first instance to seek the guidance of a professional. You can locate a Contentious Probate specialist in your local area in the Certainty Contentious Probate Hub & Area.
Unfortunately, Contentious Probate matters often arise during a difficult time in an individual’s lifetime, it is not easy and emotions at times can run high. Notwithstanding the complexity of the matters and difficulty in interpretation of the underlying law, the procedure required can often be a stumbling block for those who attempt to litigate themselves without obtaining the advice of a specialist. A specialist Contentious Probate solicitor will be able to assess the situation in early course and provide advice, this would include assessing the merits of a case and evaluating the prospects of success.
Contentious Probate is a particularly niche area of the law. If you are aware of any of the signs of a Contentious Probate matter as outlined above it would be beneficial to obtain specialist professional advice.
It is so important to set the tone correctly at the start of a matter. Decisions that are made early on without full knowledge of certain matters can be regretted and can easily cause unintended consequences. Obtaining specialist input at the outset can help avoid such problems and help parties to a dispute understand what the key points to focus on are right from the outset, often saving time, stress and expense.
The Contentious Trusts and Probate Team at Meridian Private Client LLP are experienced at dealing will all manner of disputes, many of which may not come to light until after someone passes away. Should you require further advice or are concerned about any potential future disputes, please contact Meridian Private Client on 01675 442 430 and ask to speak to a member of our team.
