As the cost of care continues to rise in the UK many people are seeking ways to protect their assets from being ravaged by care costs in later life. With the threat of looming care fees many people are tempted to gift away their assets to family members so...
What is Contentious Probate
Contentious probate is the area of law dealing with disputes over wills, estates, and inheritance matters. It differs from non-contentious probate, which is the standard process for administrating a deceased’s estate.
Contentious probate matters can involve court proceedings or formal disputes between parties. You may need to instruct contentious probate solicitors if you suspect a will is invalid, believe you should have been provided for under a will, or are facing problems with the administration of an estate.
Common Types of Contentious Probate Claims
Common types of contentious probate claims include:
- challenges to the validity of a will
- claims under the Inheritance (Provision for Family and Dependants) Act 1975
- proprietary estoppel claims
- disputes involving executors.
Grounds for Challenging the Validity of a Will
There are four common legal grounds for contesting a will’s validity: (1) lack of testamentary capacity; (2) undue influence; (3) lack of knowledge and approval; and (4) fraud and forgery.
The test for capacity necessary to execute a valid will is based on the case of Banks v Goodfellow (1870) LR 5 QB 549. A testator must:
- understand the nature of a will and its effect
- understand the extent of the property which they are disposing under the will
- are aware of the persons for whom they would normally be expected to provide
- have no disorder of the mind that affects their choice of dispositions
The level of understanding required varies according to the complexity of the will, the testator’s assets and the claims to those assets.
If a testator is pressured or coerced into making a will, it can invalidate the will. Undue influence is also presumed where there is a relationship of trust and confidence, such as doctor-patient, solicitor-client or carer-vulnerable person. In those circumstances, if the person in the dominant position receives a disposition under the will, they must prove that the disposition was not as a result of undue influence.
If a testator did not know or understand the contents of their will, the court may declare it invalid. Where the testator is deaf, blind or illiterate, cannot write or directed someone else to sign the will on their behalf, there is a presumption that they did not have the required the knowledge of the will.
A common type of fraud involving wills is where the testator’s signature is forged and an original will hidden or destroyed. A will may also have been fraudulently amended after execution. You may need evidence from the witnesses to the will or from a handwriting expert to prove the allegation.
Inheritance Act 1975 Claims
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are not about will validity but about inadequate provision under the terms of the will. A claim can be brought by certain categories of people, including spouses and civil partners, former spouses, cohabitees, children and dependants of the deceased.
A claim under the Inheritance Act will be for “reasonable financial provision”, the extent of which will depend on the circumstances of each case. The court considers various factors, including financial needs, estate size, the claimant’s circumstances and the deceased’s obligations.
The time limit for bringing an Inheritance Act claim is normally 6 months from the Grant of Representation.
Inheritance Act claims are commonly brought by family members of the deceased who feel they are not adequately provided for under the terms of the will. Cohabitees may need bring a claim if the deceased did not make a will and their estate is to be distributed according to the intestacy rules.
Proprietary Estoppel Claims
Proprietary estoppel is an equitable doctrine which enables claims based on promises or assurances about inheritance. There are three required elements for proprietary estoppel:
- a promise or assurance was made
- the claimant relied on that promise
- the claimant suffered detriment as a result
One example of proprietary estoppel could be where family members work on a farm for decades based on promises of inheritance. Another example could be where someone cares for an elderly relative based on assurances of receiving their property.
Proprietary estoppel claims can succeed even without a will or against the terms of a will. There is no strict time limit for proprietary estoppel claims but claimants should not unduly delay in bringing a claim.
Executor Disputes and Removal
Executors can become involved in disputes, including when beneficiaries wish to challenge their actions or seek their removal. As trustees, executors have fiduciary duties to the beneficiaries of the estate. Executors may be at risk of breaching their duties through conflicts of interest, mismanagement of assets or failure to disclose sufficient information.
If an executor is in breach of their fiduciary duties, the beneficiaries or fellow executor(s) may have grounds for removing them from their role.
Conflicts can also arise between joint executors, including about the valuation of assets, claims against the estate or unreasonable behaviour of one executor. These disputes can often be resolved amicably, but it may be prudent for each executor to seek independent legal advice. It is also possible to make an application to the court for directions as to the appropriate action to take.
The Contentious Probate Process
Typically, a contentious probate case begins with an initial consultation and an assessment of the available evidence, including identification of any further evidence required. In some cases, expert evidence (such as medical expert report about mental capacity, or a handwriting expert report for forgery claims) may be needed. If there is a serious prospect of a claim succeeding, a pre-action letter should be sent to the relevant party. If there is no prospect of settlement, including through alternative dispute resolution, it may be necessary to issue proceedings.
It is often prudent in contentious probate claims to issue a caveat which prevents probate being granted. Many cases settle before trial, but parties to litigation should be prepared for the possibility that no settlement can be reached.
Time Limits for Contentious Probate Claims
Time limits vary depending on the contentious probate claim.
Claims under the Inheritance Act 1975 must be brought within 6 months of the grant of probate. The grant of probate can be delayed by applying to the Probate Registry to enter a caveat, which will allow more time to investigate a possible claim.
There is generally no strict time limit for challenges to the validity of a will, but any challenge should be brought promptly, as delay can weaken a claim and a court may refuse a claim that has been unduly delayed.
Proprietary estoppel claims are not subject to a limitation period but should not be unduly delayed.
In all cases, it is important to take early legal advice to avoid missing deadlines.
Costs of Contentious Probate Cases
It is extremely difficult to predict the costs of contentious probate cases, as much depends on the nature and complexity of the dispute. Many, but not all, cases settle and save the cost of going to trial. Should the matter go to trial, contentious probate follows standard litigation costs rules – i.e. the starting position is that the loser pays the winner’s costs.
Many contentious probate cases are privately funded, but conditional fee arrangements and insurance can sometimes be utilised, where appropriate. In certain circumstances, all costs may be paid out of the estate (for example if the court finds that all parties have made valid arguments about the interpretation of a will).
It is important to obtain early costs advice and undertake a cost-benefit analysis before issuing proceedings.
Why Choose LBMW Solicitors for Contentious Probate
LBMW Solicitors have specialist experience across all types of contentious probate matters, with a track record of obtaining successful outcomes for clients both in court and by negotiating settlements. We provide a personalised, partner-led service, with clear cost information and transparent billing. We take a compassionate approach to contentious probate matters, which frequently involve difficult family situations.
If you have a contentious probate query, please contact us to arrange an initial consultation.
FAQs
What is the difference between contentious and non-contentious probate?
Non-contentious probate is the standard process of administering an estate without disputes, while contentious probate involves legal challenges, disputes over wills, or claims against estates. Contentious matters require specialist litigation solicitors.
How long do I have to challenge a will?
Different time limits apply to different claims. Claims under the Inheritance Act 1975 are subject to a 6-month deadline from the grant of probate. Will validity challenges don’t have a strict deadline but should always be brought promptly. You should contact a solicitor immediately if you are considering a challenge.
What are the main grounds for contesting a will?
The main grounds for contesting a will include lack of testamentary capacity, undue influence, lack of knowledge and approval by the testator, fraud or forgery, and claims under the Inheritance Act 1975 for reasonable financial provision.
Can I contest a will if I’m not named in it?
Yes, you can challenge a will’s validity even if not named in it, but you must have “standing” to do so e.g. as a beneficiary of an earlier will or under the intestacy rules. Certain categories of people can also make Inheritance Act claims for reasonable financial provision even if not mentioned in the will.
How much does it cost to contest a will in the UK?
Costs vary widely depending on the nature and complexity of each case and whether it settles or goes to trial. It is important to obtain a costs estimate at the outset and particularly before issuing proceedings.
What happens if I lose a contentious probate case?
Losing a contentious probate case can have adverse costs consequences, as the unsuccessful party typically pays their own costs plus a significant portion of the other side’s costs. You should obtain clear advice on the risks and merits of any claim before proceeding.
Can an executor be removed?
Yes, executors can be removed by the court if there are sufficient grounds (such as for breach of duty, delay, conflict of interest or misconduct). A court application will be required with clear evidence of the problems caused by the executor’s conduct.
What is a caveat and when should I use one?
A caveat is a formal notice to prevent a grant of probate being issued. It is often used when someone intends to challenge a will and needs time to investigate and gather evidence. Caveats last 6 months but can be renewed.
How long do contentious probate cases take?
Contentious probate cases vary in length depending on the nature and complexity of the case, the number of parties and their conduct. However, cases which settle through negotiation might resolve in 6-12 months, while contested cases going to trial can take 18-24 months or longer.
What evidence do I need to challenge a will?
The evidential requirements to challenge a will depend on the type of claim.
For mental capacity challenges, medical records will usually be necessary as well as witness evidence about the deceased’s mental state.
For undue influence claims, evidence of relationship dynamics as well as the deceased’s isolation and/or vulnerability may be required.
Inheritance Act claims rely on financial evidence of the claimant’s needs and resources, as well as (in some cases) their relationship to the deceased.
LBMW can help identify and gather the necessary evidence for your claim.
