Contentious probate

contentious probate

This page was last updated on 1 April 2021

Contentious Probate In 2021

If a loved one has passed away, and you disagree with the administration of their estate, you may need to go down the route of contentious probate.

Topics that you will find covered on this page

You can listen to an audio recording of this page below.

What does the term ‘contentious probate’ mean?

Contentious probate refers to any disagreements over a deceased person’s will and how their estate should be handled. The most common types of probate disputes are ‘will disputes’, which is about questioning the validity of a will.

What types of dispute can contentious probate include?

Contentious probate includes a variety of disputes, including:

  • A dispute over whether a will or codicil is valid, such as when you think there has been undue influence or the deceased person lacked capacity
  • A claim under the Inheritance (Provision for Family and Dependants Act) 1975. This means the court can decided what would be a reasonable way to distribute the estate
  • Disputes about the administration of the estate and how property has been distributed
  • Wanting clarity about  wills
  • Disputes on the costs by the person administering the estate, the trustees or the lawyers.
  • The authority of the executors and trustees.

Here is a short video explaining what contentious probate is.

What elements are needed for a will to be valid?

Wills must meet a number of requirements by law:

  • It must be signed in the presence of two witnesses
  • The instructed solicitor present must be sure their client had mental capacity. If they are not sure, they should seek help from a medical professional.
  • There should be an explanatory statement (though this is not a legal requirement)

If any of these has not occurred, there may be potential to challenge the will.

On what grounds can individuals contest a will?

Disputes are generally about how the assets are distributed. This includes the following bases:

  • Doubt over if the will was valid. This is relevant if the will was unsigned, there were not two witnesses, the deceased did not have mental capacity, the deceased was coerced or there was an undue influence when they made the will.
  • The will was forged.
  • If you feel there has been impropriety by the trustees or the executors.
  • If you were dependant on the deceased person and you feel the will does not properly provide for you.

Who can contest a will?

To be entitled to claim inheritance, you must fall under one of the categories in the 1975 Inheritance (Provision for Family and Dependants) Act, Section 1. This includes:

  • The spouse or civil partner of the deceased
  • Child of the deceased
  • Step child of the deceased
  • Dependant of the deceased
  • Someone who lived in the same home as the deceased as if they were a married couple or civil partners

These people can make an application on the grounds that the will did not make ‘reasonable financial provisions’ for them.

What is the Inheritance Act?

The Inheritance Act means that when writing a will, there is a legal obligation to factor in those who are financially dependant on you.

If the person has not done this, their family by law can contest the will and argue why they should have been included.

"If you are planning on contesting probate under the Inheritance Act, you should do this as soon as possible, and at least within 6 months of the grant of probate being granted."

What does the term ‘reasonable financial provision’ in the Inheritance Act mean?

This is set out Part 2 of the Dependants Act 1975. For a husband, wife or civil partner, this means that the will must make the financial provisions that are reasonable in the circumstances for a partner, irregardless of whether this provision is needed for the person’s maintenance.

For someone else, the person must receive the financial provisions that are reasonable for their maintenance.

How long do I have to make my contentious probate claim?

If you are planning on contesting probate under the Inheritance Act, you should do this as soon as possible, and at least within 6 months of the grant of probate being granted.

The court can extend this if there were good reasons for the delay like if you were away, misled or did not know that the deceased had passed away.

If you are contesting the will because you think there was a fraud, there is no time limit.

contest probate

What reasons can I use to get rid of an executor?

  • An executor can be removed automatically if:
  • They have passed away
  • They have been outside the UK for over 12 months
  • Where for some other reason, like a disability, they are unable to act.

If these do not apply, you can apply for an executor to be removed because:

  • They have refused to act
  • They are not fit to act, like if they have got convictions for fraud, they are not fulfilling their duties or are making a profit from being an executor
  • All the relevant parties have agreed
  • The executor does not get on with the beneficiaries of the estate
  • They are not suitable for any other good reason.

How do I apply for an executor to be removed?

First, it is worth trying to get the executor to agree to step down, as they often are willing to.

If the grant of probate or letters of administration have not been granted yet, you can make an application to the probate registry under Section 116 of the Senior Courts Act 1981.

If the grant of probate or letters of administration have already been granted, it is harder to get rid of an executor. You would have to apply to the High Court, and use S50 of the Administration of Justice Act 1985.

What should I do if I am not being told information about an estate and I think I should be?

Beneficiaries are entitled to ask for information about the estate, including the estates accounts and what their rights are under the will.

If an executor will not provide you with this information, one way to resolve this is to apply  for what is called an ‘inventory and account.’

This means the executor is required to give you an itemised list of all the assets in the estate, and a list of everything they have done with the assets so far.

What if the deceased person promised to provide me property, but they didn’t put it in their will?

The courts can decide whether or not to enforce a promise made by a deceased person and order that the property is delivered to a party. This sort of promises is called a secret trust.

Do I have to go to court to contest probate?

No. Most wills disputes are resolved out of court through methods like negotiation and mediation.

These methods are generally faster, cheaper and can reduce more conflict than is necessary in the wake of the death of a loved one.

It is a good idea to contact specialist services before you involve any other relatives or beneficiaries of the estate.

If the beneficiaries all agree to an amendment to the will, do we have to go to court?

No. However you will need a ‘deed of variation’. While you can vary wills yourself, it is better to contact a legal service to deal with this, as there can be complex legal and tax implications.

How do contention probate proceedings get resolved in court?

Court proceedings should be the last resort, and where possible you should attempt to settle your wills disputes by agreement or mediation. This is much less confrontational and generally much cheaper and easier.

In proceedings, all of the executors and administrators of the estate will be joined as one defendant to any claim. They are referred to as the personal representatives of the estate.

They are meant to take a neutral stance on the claim otherwise there could be costly consequences. The beneficiaries should actively defend the claim against the claimant.

How long does a contentious probate dispute normally take?

This varies case by case and depends on when in the process the dispute is resolved and how complex the claims are. If mediation does not work initially, within 3-6 months the parties should consider issuing a legal claim.

Once a claim is issued, court processes can take between 12 and 18 months.

Who is responsible for paying for the contentious probate application?

This depends whether your application was successful. If it is successful, then the court can make sure that the costs of the application come out of the estate.

If the application is not successful, usually you will be required to pay your own costs and the costs the estate incurred because of your claims.

How much does it cost to contest probate?

Contentious probate claims costs depend on the type of dispute, the nature of the estate, how many people are involved, and how complex and heated the dispute is.

However, it is always worth keeping in mind how much the estates you are competing over are worth to make sure that your contentious probate costs do not become disproportionate.

What is non-contentious probate?

This is where nobody tries to challenge the will and how the estate is handled. This includes any probate which does not involve any judicial proceedings.

What rules apply to non contentious probate?

The rules for claims set out under the Non Contentious Probate Rules 1987 for how the High Court will deal with non-contentious probate.

The management of practice and procedure is set out in the Non-Contentious Probate Rules 1987/2024.

What should I do if I am the Executor or Administrator of a will that is being challenged?

If someone claims against the will you are the executor of, this is likely to delay the administration and distribution of the estate.

You should, therefore, attempt to get legal advice about how likely the action is to succeed and what you should do next.

Is it worth hiring contentious probate solicitors for my dispute?

If you cannot resolve the dispute without legal proceedings, it is a good idea to use contested probate solicitors.  This is because contentious probate can get very complicated and end up in the High Court.

This is also true if you are defending a contentious probate claim.

What should I look for in a contentious probate specialist?

One thing to look for is whether the solicitor you are hiring is a part of the ‘Association of Contentious Trust and Probate Specialists‘.

You should also ensure that the solicitor you use is regulated by the Solicitors Regulation Authority (SRA).

What considerations are there in choosing contentious probate solicitors?

Beyond accreditation there are numerous considerations when deciding which firm to use:

  • If it is a local firm- this is important so you can meet and discuss the case
  • Expertise in wills and probate claims- how experienced you need your probate solicitors to be depends on how complex the issues are
  • Whether they offer alternate dispute resolution, including mediation
  • The type of client they normally give advice to, such as executors or beneficiaries
  • Cost- some firms offer ‘no win no fee’ agreements or other flexible payment options
  • Ratings by previous clients

Where can I get more information?

One way to get information relating to your personal situation is to contact a solicitor. Many solicitors will offer a potential client a free initial personal consultation service, generally of up to 30 minutes.

This gives you the opportunity to discuss the circumstances of your dispute, gain more information on the legal area and identify the best next steps.

Would you like some help with a potentially contentious probate process?

You can contact us in one of 3 ways:

  • book an appointment directly in the calendar below
  • leave your contact details and we will get in touch with you
  • call us directly on 0333 567 1608

Leave your details below and a probate specialist will get in touch

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you can call us directly Monday – Friday between 8:00am – 5:30pm

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All calls are undertaken by Kings Court Trust, the UK’s leading probate specialists.

Article author

Katy Davies

I am a keen reader and writer and have been helping to write and produce the legal content for the site since the launch.   I studied for a law degree at Manchester University and I use that theoretical experience, as well as my practical experience as a solicitor, to help produce legal content which I hope you find helpful.

Outside of work, I love the snow and am a keen snowboarder.  Most winters you will see me trying to get away for long weekends to the slopes in Switzerland or France.

Email – katy@helpandadvice.co.uk

LinkedIn – Connect with me

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Contentious probate includes a variety of disputes, including a dispute over whether a will or codicil is valid, such as when you think there has been undue influence or the deceased person lacked capacity. However, there can be many reasons and this article sets out what you can do to challenge a probate process.

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Frequently Asked Questions

What does the term ‘contentious probate’ mean?

Contentious probate refers to any disagreements over a deceased person’s will and how their estate should be handled. The most common types of probate disputes are ‘will disputes’, which is about questioning the validity of a will.

What is the Inheritance Act?

The Inheritance Act means that when writing a will, there is a legal obligation to factor in those who are financially dependant on you.

How long do I have to make my contentious probate claim?

If you are planning on contesting probate under the Inheritance Act, you should do this as soon as possible, and at least within 6 months of the grant of probate being granted.

How do I apply for an executor to be removed?

First, it is worth trying to get the executor to agree to step down, as they often are willing to.

If the grant of probate or letters of administration have not been granted yet, you can make an application to the probate registry under Section 116 of the Senior Courts Act 1981.

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