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What is Contentious Probate, and how does it affect me?

Losing a loved one is always difficult, but it can be especially hard in cases where disputes arise in relation to their Will or Estate.

While most people make a Will so that their wishes may be carried out after they pass away, it is not uncommon for family members to disagree over the distribution of assets and over who gets what.

In some cases, the dispute can be resolved through negotiation and mediation, but where matters cannot be resolved amicably it can lead to court proceedings being commenced.

Here, Lee Foster, Director and inheritance dispute specialist at law firm Banner Jones, explains what Contentious Probate is, and the type of claims that can arise where a person feels that a reasonable financial provision has not been made for them.

Contentious Probate

“Contentious Probate refers to any disputes arisen over an individual's estate once they have passed away,” Lee explains. “This could happen if an interested party such as a family member feels as if they have not been fairly treated, or if they feel that the Will was created under duress or without following the correct legal process.

“It can also occur when someone dies without leaving a valid Will, which is known as intestacy. In such cases, the rules of intestacy set out who should inherit the deceased person's assets.

“However, this can still lead to disputes between family members or others close to the deceased, especially if significant assets are involved or questions about the deceased's wishes.”

What causes disputes?

“Contentious Probate disputes can arise over a multitude of reasons,” according to Lee. Including:

  • challenges on the grounds of testamentary capacity
  • undue influence
  • improper execution of Wills
  • professional negligence arising out of the preparation of Wills

Lee adds: “Properties, life savings and family heirlooms often feature in disagreements.

“However, lifetime gifts are often commonplace in Contentions Probate matters. This is where a sum of money is given away before someone dies and is often used to help with things like a deposit for a house, or to buy a new car.

“Likewise, arguments often arise where a family member feels that they offered additional financial support to the deceased which has not been reflected in the division of assets.

“Typically, people challenge the contents of a Will where they feel that they have been undervalued in comparison to the other named executors.”

In addition to the potential to challenge the validity of a will, in certain circumstances a claimant may be able to challenge the effect of the will under a piece of legislation called The Inheritance (Provision for Family and Dependents) Act 1975.

Who is entitled to make a claim under the Inheritance Act?

Under the Inheritance Act the following are within the category of persons who may pursue a claim:

  • A spouse or civil partner of the deceased
  • A divorced spouse or a separated civil partner of the deceased, given that they have not remarried or entered into a new civil partnership
  • Any person who lived with the deceased for a minimum of two years prior to their death
  • A child of the deceased (including children over the age of 18)
  • Anyone who was treated as their child by the deceased person, including adopted children, fostered children, step children and so on
  • Anyone being cared for by the deceased person prior to their death
What happens if a dispute arises?

If an individual has concerns in relation to a Will it is important that legal advice is obtained as swiftly as possible as there are strict time limits to adhere to in respect of pursuing a claim under the Inheritance Act

Lee explains: “in the first instance we would carry out an initial fixed-fee appointment followed up with a detailed advice letter, to assist our clients in establishing the merits of a case and to provide them with a suggested course of action.

“Further to that, we would always seek where possible to resolve a case by negotiation or mediation, therefore avoiding the need for expensive litigation. Where that isn’t possible, however, we will begin legal proceedings in order to protect everyone involved in the dispute.

“At all stages of proceedings, it’s highly recommended that anyone involved in a disagreement seeks independent legal advice from an expert, as they will work in their client’s best interests and help to create an amicable solution for all parties.

“It’s also important to remember that while it is possible for there to be Contentious Probate whether you have a Will or not, it is far less likely if your Will is up to date, and if it has been drafted by an experienced Solicitor.”

If you would like advice on Wills, Trust’s and Estate Disputes, get in touch with Banner Jones’ expert team who will provide you with the best advice and outcome.

Lee Foster
  • Director
  • Solicitor

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