Legal Talk: What is contentious probate?

*Sponsored by Elmhirst Parker Solicitors, Barnsley

Losing a loved one can be a difficult time. But when there are disputes about inheritance and the contents of a will, bereavement can be even more challenging.

Some people write their own will without proper legal advice. Poor drafting and clerical errors can lead to arguments over what the person really intended. Misunderstandings may also mean that someone who thought they would inherit does not.

If you’ve been left out of a will or think a will may be incorrect, understanding when an estate can be contested can help answer many questions and make a troubling time less confusing for all.

What is contentious probate?

Contentious probate in the UK refers to a legal dispute that arises when the validity of a will or the distribution of an estate is called into question.

For example, this can happen when a family member or other interested party feels that they have not been fairly treated in the will, or they suspect that the will was made under duress or without proper legal formalities – both reasons that can invalidate the contents.

In recent years, the number of contentious probate claims has increased due to various factors including a wealthier society, DIY wills that were incorrectly drafted, and complex family structures.

On what grounds can you contest a will?

You cannot challenge a will simply because you feel it is unfair or not to your liking. In England and Wales, the principle of testamentary freedom overrides. This basically means a person is free to leave their estate to whomever they wish, so long as their will was recorded correctly and they had the required capacity to make that decision.

However, there are times when it may be possible to contest a will, including:

  • ‘Further provisions’ – this is common among spouses and children who feel they should have received more from the deceased’s will, especially if they were financially dependent on them under legislation. Evidence and a genuine financial need will need to be proven.
  • Lack of testamentary capacity – they did not sufficiently know what they were doing at the time they executed the will.
  • Undue influence – a person was forced against their wishes to write a will in a particular way
  • Issues with executors of the will – disagreements regarding the appointment or actions of one.
  • Mistakes and disagreements – disputes over the correct ownership of property or the value of an asset.
  • Lifetime gifts and promises – were they valid and made when the person had capacity and with their knowledge and approval.

What if there is no will?

When someone dies without leaving a valid will, it is known as intestacy. In such cases, the law sets 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.

Why do I need a solicitor?

Deciding whether to contest a will is a big decision, especially if it could put you at odds with other family members. You should always contact a solicitor if you feel that a will or estate is not being correctly handled.

In such cases, a solicitor can play a crucial role in representing their client’s interests and helping to resolve the dispute sensitively to avoid escalation.

This may involve advising on the legal options available to the client, such as contesting the will, negotiating a settlement with other beneficiaries, or seeking a court order to protect their client’s interests.