Contentious Probate

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In essence contentious probate cases arise when there is an argument after someone has died about the distribution of their Estate. When someone dies having made a Will, Executors will have been appointed. Their role is to ensure that the terms of the Will are complied with. Normally that means that they need to apply for a document called a Grant of Probate. If someone has died without making a Will (i.e. “intestate”) then someone needs to apply for a different document called a Grant of Letters of Administration to deal with the estate.

If there is an argument about who should get what, then there may need to be Court proceedings about whether a Grant of Probate or Grant of Letters of Administration should be made, or if it has been made whether that grant should be revoked. There might also or alternatively be an argument about whether a Will that has been produced is valid.

Wills can be challenged on several grounds:

  1. Lack of testamentary intention – a document will only operate as a Will if it was intended by its maker to operate as a Will.
  2. Lack of due execution – a Will must comply with the requirements of Section 9 of the Wills Act 1837 and is not valid unless:
    1. It is in writing and signed by the Testator or by some other person in his presence and by his direction.
    2. It appears that the Testator intended by his signature to give effect to the Will.
    3. The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time.
    4. Each witness either:
      1. Attests and signs the Will
      2. Acknowledges his signature in the presence of the Testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary.
  3. Lack of testamentary capacity – the person making a Will needs to be capable of understanding:
    1. The nature of his act and its effect.
    2. The extent of the property of which he is disposing.
    3. The claims to which he ought to give effect.
  4. Lack of knowledge and approval – did the Testator know and approve the contents of the Will? Were there any suspicious circumstances?
  5. Undue influence – This is harder to establish than lack of knowledge and approval. Undue influence has a narrow definition and coercion must be proved. The test is whether the testator would say after all is said and done “This is not my wish but I must do it”.
  6. Fraud and forgery – what must be proved here is dishonesty. As a serious allegation it requires a high standard of proof.

Strictly speaking contentious probate cases are different from claims brought under the Inheritance (Provision for Family and Dependants) Act 1975. This Act provides a route by which certain classes of people are entitled to make a claim against the estate of someone who has died if it does not make sufficient financial provision for them (whether by Will or intestacy). The eligible claimants are:

  1. The spouse or civil partner of the deceased.
  2. A former spouse or former civil partner of the deceased but not one who has formed a subsequent marriage or civil partnership.
  3. A child of the deceased.
  4. Any person (not being a child of the deceased) who was treated by the deceased as a child of the family.
  5. Any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased.

The application to the Court is on the basis that the Will or intestacy did not make reasonable financial provision for the applicant.

Finally, also not strictly within the definition of contentious probate but none the less often considered under the same heading, is the situation where there is an allegation that the deceased has received negligent advice from a solicitor or Will writer. This would involve an allegation of professional negligence.

All of these matters can involve complex issues of law and require specialist advice.

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