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Everything you need to know about contentious probate

Probate can be difficult to navigate, and it can become even trickier when it comes to contentious probate. Below, we set out key facts and information on contentious probate and explore how the process works in order to answer some of the most important questions you may have when it comes to this intricate matter.

By Grant Longstaff. Published 06 March 2024.

What is contentious probate?

Contentious probate refers to legal disputes which can present themselves when it comes to the administration and distribution of a deceased person’s estate. Often this kind of dispute will arise when the beneficiaries contest the validity of a will or wish to dispute the proposed distribution of assets. There are many issues covered by contentious probate, including:

  • Capacity
  • Creditor claims against an estate
  • Fraud
  • Forgery
  • Inheritance
  • Mutual wills
  • Opposing a grant
  • Presumed death
  • Proprietary estoppel
  • Revocation of a Will
  • Revocation of a grant
  • Solicitor/Advisor claims
  • Trust disputes
  • Undue influence
  • Want of due execution

Why do I need a solicitor?

Losing a loved one can be an extremely emotional time and a probate dispute can often increase the difficulties people face whilst they’re grieving. Solicitors are a necessary part of the legal process when it comes to contentious probate. They represent their client’s best interests, can argue a case factually and diplomatically on their behalf, and can provide much needed support during a challenging period of time.

What are probate rules?

Probate is the legal right to manage the estate – money, possessions, and property – of a deceased person. Probate rules outline the procedures in place. These include obtaining a grant of probate, guidance on resolving disputes and how to navigate the process both with, and without, a will.

Contentious probate with a will

Contentious probate with a will may arise for several reasons, such as, mistakes or disagreements over ownership of property, perceived unfairness in a will, concerns regarding the executor of a will, fraudulent wills, or coercion.

Contentious probate without a will

If the deceased has no valid will then the estate must be shared according to a process known as intestacy. However, intestacy law can still be challenged and may lead to contentious probate.

How long does probate take?

Unfortunately, there isn’t a set time limit on how long probate will take and the duration of the process can vary greatly. It can depend on how complex the case is, the cooperation of those involved, and any challenges which may present themselves as the process progresses. It can also depend on the size of an estate and the number of parties or beneficiaries involved.

Who can bring forth a contentious probate claim?

Essentially anyone with an interest in the estate can make a contentious probate claim. This will include family members, beneficiaries, or anyone who believes they have been wrongfully excluded from a will.

How can contentious probate proceedings be resolved?

There are a few ways in which contentious probate disputes can be resolved. It can often be handled through negotiation and mediation between the involved parties, though in some cases it may require litigation.

What are the reasons to contest a will?

We briefly touched on some of the reasons why someone may contest a will above. Some of the most common include the deceased lacking the mental capacity to make a valid will, or the undue influence or manipulation of the deceased before their death to create or change a will. There may also be situations of disinheritance – where a party believes they have been unfairly represented in a will – or there are numerous wills. There can even be cases in which wills include mistakes, have been improperly executed and therefore do not meet set legal requirements, or are fraudulent or forged.

What is a grant of probate?

A grant of probate is a legal document needed by the executors. Once this has been obtained they then have the legal authority over the deceased’s estate. You’ll need this document in order to access the bank accounts, sell the assets, and settle any debts the deceased may have.

How much does contentious probate cost?

It’s difficult to say exactly how much contentious probate may end up costing as it will depend on many factors and will change on a case by case basis. The complexity of the case, the length of the proceedings, legal expenses, and court expenses can all impact the cost. A solicitor will be able to advise on this and will likely lay out any potential future charges based on the case. Solicitors will often try to resolve contentious probate cases through dispute resolution first of all, as this will avoid the higher costs associated with taking the case to a court.

Who is responsible for the costs in contentious probate proceedings?

Who pays for the proceedings will ultimately depend on the outcome of the case. If it’s ruled the person who made the will caused the proceedings then the estate will pay the fees. If a party is unsuccessful they may have to pay the fees themselves. Every case is unique however, and solicitors must make clients aware of any potential costs and fees they may need to pay.

Who is a contentious probate solicitor?

Contentious probate solicitors are responsible for handling the legal disputes related to the distribution of an estate and their expertise makes them particularly proficient in probate and inheritance disputes.

How to become a contentious probate solicitor

Contentious probate is an area of the law which requires careful consideration of both the legal details and a client’s requests and wellbeing. We work in partnership with the Association of Contentious Trust and Probate Specialists (ACTAPS) to offer professional training for those already working in probate and to legal professionals looking to move into this kind of work. We want to help train the next generation of probate lawyers and ensure they have the specialist knowledge and expertise in client guidance to help those through some of the most difficult legal encounters someone might face.

 

Find out more about our ACTAPS course and change the direction of your legal career today.