Contentious probate – the rules and how they apply to beneficiaries

News Article

Losing a loved one is a painful and difficult process, and sorting out their estate after they’ve gone can be a challenge. If they’ve made a detailed will and everyone is happy with the validity of the will and its contents, then that should make life for those left behind a little easier. Probate should be completed without any hassle, and is usually done and completed within around six months.

However, if a person dies without leaving a will (intestate), or even worse, when a will has been drawn up but is contested by either a beneficiary or someone who thought that they should’ve benefited from the will but didn’t, then the probate process can drag on for months, years, or even come to a complete stop.

What grounds are there for challenging a will?

While contentious probate is something that everyone wants to avoid, there are certain situations where contesting a will is legitimate. These include:

  • A will that hasn’t been executed correctly by the executor according to the law
  • The mental capacity or capability of the person making the will is in doubt (as is often the case with dementia sufferers)
  • The distribution of the estate doesn’t provide enough for any dependents (most often spouses and children) who may face financial hardship as a result.
  • When there’s suspicion that the deceased was forced or coerced into changing a will against their wishes
  • A will that has been fraudulently changed by a third party
  • A will where the distribution of the estate is contested by one or more beneficiaries, or by someone who expected to be included in the will but has been left out.
  • A will that beneficiaries feel has been dealt with in an improper manner

While all of these scenarios could be legitimate grounds to contest a will, there needs to be substantial proof if a will’s clauses are to be overturned by a court.

Who can contest a will?

The main parties who can contest a will are:

  • Direct beneficiaries
  • An individual who was contracting promised something by the deceased but finds they’ve been omitted from the final will.

The Inheritance (Provision for Family and Dependents) Act 1975 allows people with a certain relationship to the deceased to bring a claim to contest a will, including:

  • A spouse
  • A former spouse if the deceased has not remarried.
  • A partner who lived with the deceased for at least 2 years immediately before the death.
  • A child (direct descendent)
  • Any individual supported financially (partly or totally) by the deceased.

How is a will contested?

Surprisingly, most contested wills do not end up in the courts, and are usually solved as a result of mediation and negotiation through professional family law solicitors. If the process cannot be resolved then it may result in formal court proceedings, where the will is examined by a judge. Their ruling is final.

If you are planning to contest a will then it’s vital that you seek professional guidance as soon as possible. If you’re in the other camp and are forced to defend a contested will against someone who is challenging the validity of the contents, then again, it’s important to get expert legal advice from a family and probate law specialist.

Speak with our team today for an initial discussion. We offer expert advice, great value for money and our services can be provided remotely for your convenience. For more information please email or call us on 020 8349 0321.

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Ali Kabani
Posted in Blog, Contested Probate, Private Client and tagged , , .