How to Avoid Contentious Probate

18 December 2020

For many people Coronavirus has made them reconsider their mortality and brought to the forefront of their minds the importance of ensuring their affairs are in order. We have certainly seen an increase in the number of people reviewing, making, or rewriting their Wills this year. With the winter season approaching and a second lockdown over, more people are seeking to ensure that their affairs are in order, in particular their Wills.

Valid and authentic

Writing a Will should ensure no surprises occur within your family after you have passed away, including the transition through probate where it will hopefully be deemed to be valid and authentic. However, even with a valid Will in place, other issues may arise. In recent years, there has been a rise in contentious probate.

Contentious probate is where a dispute arises in a person’s estate. It usually involves a disagreement over an inheritance or the validity of a Will. This could range from the interpretation of the Will, a dispute over the circumstances under which the Will was made, or a dispute between the executors and beneficiaries of an estate. Many people may raise a dispute in a Will because they feel upset that they did not receive what they felt they deserved or were promised, whilst other issues may arise from the value of the assets in the estate.

Reasons to challenge

There are many legal grounds to challenge the validity of a will. These include:

Lack of mental capacity. The deceased should have fully understood that they were preparing a Will to dispose of their assets after they had died and must have the required mental capacity to make the Will.
Coercion. The deceased, who may be elderly, frail or vulnerable, should not have been forced into making a Will that they did not want to make.
Will not signed or witnessed correctly. A Will must be signed in the presence of two witnesses, who then signed and completed their details.
Deceased make promises not reflected in Will. If you were promised something by the deceased before their death and you relied on these promises and then acted in your detriment.
Will is a forgery. You have strong evidence to prove that a Will has been forged or is fraudulent.
Concerns about an executor. If you do not believe they are acting in the best interests of the estate for you as a beneficiary.

Whilst you might feel that you have been hard done by, it is worth remembering that if you start contentious probate proceedings and end up in court, any costs you incur will not be payable out of the deceased’s estate. As with other types of litigation, claims will follow the usual rule, that the loser pays the winner’s costs.

Seek legal advice

Neil Raiseborough, Director and Head of Private Client said. “Losing a loved one is a very difficult and emotional time. But if you think you might have a claim, our advice is to seek legal advice immediately. Our role is to ensure a fair outcome. And whilst court hearings can happen, most claims reach agreement during the litigation process, which includes mediation and dispute resolution services.”

He continues. “However, we believe that contentious probate disputes should not arise in the first place if a will has been:

Drawn up correctly
Signed in the presence of two witnesses.
The solicitor taking instructions has satisfied themselves that the person making the Will has mental capacity. If there is any doubt, they should seek a second opinion from the medical profession.”

Free initial meeting for support and advice

We have a vast amount of experience in Will writing, meaning we help and support you during the process. And thanks to our network of offices covering Leamington, Coventry, Nuneaton and Southam we are very accessible too. For timely and quality advice, please contact Neil Raiseborough, Director and Head of Private Client at Alsters Kelley Solicitors Ltd on 01926 356044 or email neil.raiseborough@alsterskelley.com

In addition, if you need to speak to someone about contesting a Will, then please contact Ben Chase, our Dispute Resolution solicitor on 02477 710242 or email ben.chase@alsterskelley.com

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