Contentious probate refers to legal disputes arising during the administration of a deceased person's estate.
Challenges and family conflicts often relate to the validity of Wills, the actions (misconduct) of executors, or the distribution of assets. Often they are the result of misunderstandings, perceived unfairness, or complex family dynamics.
Who can bring a contentious probate claim?
The short answer is anyone who thinks that they have a right to a reasonable share of the estate.
That can be: beneficiaries named in the Will, individuals named in a previous Will, family members who would inherit under intestacy rules, and financial dependants of the deceased.
But not anyone can challenge a Will successfully. Legal standing hinges on having a 'sufficient interest' in the estate. This means you must demonstrate a valid legal or financial claim. You can't contest probate simply because you feel the Will is unfair, nor can you just because you're a family member.
The court considers the nature of the claim and the claimant's relationship to the deceased when determining standing.
What are the legal grounds for contesting a Will?
Under English law, you can contest a Will based on:
- the testator having a lack of testamentary capacity when it was made
- the testator being under undue influence
- the testator having lack of knowledge and approval
- improper execution (incorrect signing and witnessing)
- fraudulent or forged Wills; and
- rectification and construction claims.
Each ground requires specific evidence to support the claim.
Lack of testamentary capacity occurs when the testator (the person making the Will) doesn't understand the nature and effect of their actions.
Undue influence involves someone pressuring the testator to make certain provisions.
Lack of knowledge and approval means the testator didn't fully comprehend the Will's contents.
Improper execution happens when the Will doesn't meet legal requirements for signing. In other words, its not a valid Will.
Fraudulent or forged Wills are self-explanatory - someone else made or changed the Will.
Rectification and construction claims arise when there's an error in the Will or its meaning is unclear.
Whatever ground is used, there needs to be solid evidence. For capacity claims, medical records might be required. Witness statements could support undue influence allegations.
The burden of proof lies the claimant. The court won't overturn a Will lightly - you must present a compelling case backed by substantial evidence.
What are the time limits for contentious probate claims?
Contentious probate disputes have specific time limits, depending on what ground you claim under.
Under the Inheritance Act, you need to file a claim within 6 months after the grant of probate.
Courts encourage prompt action for validity challenges, though no strict deadline exists.
Claims against estate assets have a 12-year limit. These deadlines start when the grant of probate is issued.
If you want to make a claim, you need to obtain legal advice quickly to avoid missing deadlines. Courts may extend time limits in exceptional cases, but you shouldn't rely on them doing so for you. They also have to balance the need for other beneficiaries to receive their inheritances in timely way.
How does the probate court process work in contentious cases?
The legal process for contentious probate cases is as follows:
You might first file a caveat to prevent a grant of probate. This stops the Probate Registry from issuing the grant, preventing the executors from having legal authority to continue, allowing time for negotiation or gathering evidence.
Mediation often follows, aiming to resolve disputes without court intervention.
If unsuccessful, you'd issue a claim, exchange documents, and attend hearings. Many cases settle before reaching court.
Mediation is often used for resolving disputes, particularly where the argument is that a constructive trust exists. Here a neutral third party (the mediator) facilitates discussions between involved parties, helping them reach a mutually acceptable solution. It often preserves family relationships and reduces legal expenses compared to court proceedings.
What costs are involved in contentious probate proceedings?
Costs vary greatly based on case complexity and duration. Costs in contentious probate proceedings comprise:
- legal fees (typically £200-£500 per hour);
- court fees (£200-£10,000 depending on the claim value);
- expert witness fees (£1,000-£5,000 per report); and
- document or valuation costs (£500-£2,000).
Some solicitors offer fixed-fee services for certain stages. Cost budgeting helps manage expenses.
Who pays for contentious probate?
The losing party typically pays the winning party's costs in contentious probate cases. But Courts have discretion in awarding costs, and can deviate from this rule in specific circumstances.
A judge might order the estate to bear costs if the deceased's conduct led to the claim. Courts may also find sufficient grounds for bringing the claim, altering cost allocation.
This uncertainty often influences parties' decision to settle or proceed to trial.
You should consider potential cost implications before initiating legal action. For example, if you contest a Will's validity and lose, you might face substantial legal expenses.
Executors
Executors have responsibility to protect estate assets, provide information and the estate accounts to beneficiaries and claimants, and ask for court directions when necessary. They face potential conflicts of interest if they're also beneficiaries or involved in the dispute. Generally, they need to remain neutral.
If a contentious probate claim is issued, the executors should seek legal advice about how to fulfil their duties properly and avoid personal liability. The concept of executor's indemnity protects them in most cases. But beware. It doesn't apply if they've acted improperly or negligently.
Beneficiaries
Similarly, beneficiaries have rights to receive information about the estate, stay informed of the probate process, challenge executor actions and bring claims against the estate. These rights may differ depending on whether you're named in the Will, entitled to receive a share of the residue of the estate, or claiming under intestacy rules.
If executors aren't fulfilling their duties, you can apply to the court for their removal, for example, if an executor fails to distribute assets within a reasonable timeframe.
Evidence
Evidence might include medical records (for claims of a lack of mental capacity), financial documents, witness statements, expert reports (such as handwriting analysis), and correspondence between the deceased and family members.
Courts may also order disclosure of relevant materials. Pre-action protocols guide the process. Preserve evidence early to avoid legal consequences. Spoliation has consequences.
What are the potential outcomes of contentious probate cases?
Contentious probate cases can end in out-of-court settlements, mediation agreements, or court judgments.
Courts may uphold or invalidate Wills, order asset redistribution, or remove executors. Financial settlements, changes to Will interpretation, and executor replacements are also common. Many disputes settle before trial. Settlements offer flexible, family-friendly solutions - you might structure payments or create trusts.
If you reached a settlement, you could, for instance, agree to a lump sum payment to a disgruntled sibling in exchange for dropping their claim. Mediation might lead to a compromise where you divide a contested family heirloom's value.
Court judgments, whilst definitive, may not always satisfy all parties involved.
How can family relationships be preserved during probate disputes?
Focusing on interests rather than positions preserves family relationships. You can separate legal issues from emotional ones and avoid personal attacks. Interest-based negotiation helps find mutually beneficial solutions by identifying underlying needs and concerns of each party.
Set ground rules. Try and respect the wishes of the deceased person while addressing genuine concerns. If you and your siblings or family members agree to discuss the Will only during scheduled meetings, create a structured environment for productive conversations.
When do you need a solicitor?
You probably should find legal help when you don't understand your rights or the process, if large sums are involved, when relationships are strained, if you suspect executor misconduct, or when time limits are approaching.
Failure to do so can lead to lost inheritance, damaged family relationships, and costly court battles.
Take advice early to protect your interests.
Choose the right representation by looking for specialist contentious probate solicitors. Consider their experience, qualifications, and approach to dispute resolution. Check for professional accreditations such as ACTAPS membership. Expertise matters.
Legal professionals can advise on your legal rights and options, gather and analyse evidence to put forward a case, negotiate with other parties, represent you in court, draft legal documents, and manage the probate process.
Probate lawyers can also help you follow alternative dispute resolution methods, such as mediation.