Contentious Probate Lawyers

Types of contentious probate disputes

Examples of contentious probate disputes include:

• Disputes between executors or trustees regarding how an estate or trust should be administered.
• Beneficiaries' claims that an executor or trustee is failing to comply with their duties to administer an estate or trust properly.
• Claims by individuals that a will or trust document is not valid.
• Claims by third parties against a will or trust.
• Claims about the beneficial ownership of properties.
• Claims against an estate for reasonable financial provision where an individual feels they have not been adequately provided for by a will or the rules of intestacy.
• Claims challenging the presumption that an individual has died intestate if a valid, original will cannot be located.
• Claims that a will fails to record the deceased's true wishes accurately.

Remember, this list is not exhaustive, highlighting the complexity and depth of contentious probate disputes.

Difference between contentious probate and contesting a will

‘Contentious probate’ covers a wide range of types of claims, including (but not limited to) disputes between executors, disputes between beneficiaries and executors, claims against an estate for reasonable financial provision, claims that a will is valid but does not accurately reflect the deceased’s true wishes, and claims regarding the beneficial ownership of a deceased’s property.

Contesting a will is limited to claims that a will is invalid. There are different bases for contesting a will, including that the deceased lacked the capacity to make a will, that they were unduly influenced, or that it was not executed (signed) properly. 

Grounds for a contentious probate

There may be various reasons someone is justified in pursuing a contentious probate claim. They could be an executor seeking to administer an estate, but the beneficiaries are refusing to agree the estate accounts. Or a beneficiary may consider that an executor has failed to administer the estate following the terms of the will.

An individual may consider that they are entitled to more than they a gifted in a will or under the intestacy rules. Or an occupant of a property may think they have a beneficial interest in the property. The most important element of any contentious probate claim is establishing the evidence that a wrong has been or is going to be committed.

A lack of evidence can mean that even if a claim feels justified, it is not a worthwhile exercise, as the court will rely on the evidence before making any final order. Sometimes, it is a case of gathering the evidence as we go (for example, correspondence can be used to demonstrate unreasonable conduct). 

Value of the estate 

The value of the estate or trust will be highly relevant to any contentious probate or trust claim. Contentious trusts and probate claims can be costly, time-consuming, and emotionally stressful. Therefore, the value of the claim is relevant to whether it is proportionate to pursue it.

If the value of the estate is unknown, our estate administration team may be able to assist in assessing its value, or we may need to obtain valuations of certain assets.

We must be clear from the outset (where possible) what assets the deceased owned. Of course, this may form part of the subject of the dispute, which will be established as the matter progresses.

Challenging an executor

There may be many reasons why a beneficiary considers it necessary to challenge an executor. They may think that they are not appropriate for the role or that their conduct is not in accordance with the terms of the will. 

Contesting a will

There are several grounds for contesting a will, including a lack of capacity, undue influence, a lack of understanding as to the terms of the will, decisions having been made based on false information, or the will itself may not have been validly signed/executed. 

Inheritance Act claims 

Sometimes, individuals consider they have received insufficient provision from an estate.

If they fall into the class of persons entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, they may be able to claim greater provisions from the estate. Such persons include spouses, civil partners, children of the deceased, those treated as children of the deceased, and those being maintained by the deceased for at least two years immediately before the deceased’s death.

Creditor claims to the estate

It may be that a third party considers they have a claim against an estate, such as a creditor (i.e. someone to whom the deceased owed money or other assets).

The third-party could have loaned money to the deceased that have not been repaid, or the deceased failed to comply with the terms of a legal contract.

Not all claims survive the death of another person, but contractual claims for the payment of monies usually do.

Mediation 

Most contentious probate claims are resolved without involving the courts. Usually, this is done either by correspondence or by mediation. Mediation is a formal means of negotiating facilitated by an independent third party (the mediator).

The people involved in the dispute must agree to mediate and prepare position statements in advance so that everyone understands each other's position. The people involved will either attend the mediation in person or remotely, but it is essential that whoever attends has the authority to reach a legally binding settlement. Usually, the parties do not engage directly with each other during the mediation, although they can do so.

The mediator will move between each person, relaying messages from one side to another to encourage compromise. If an agreement is reached, legally binding settlement terms will be signed by all parties.