Contentious Probate

Our team is experienced in all forms of contentious probate disputes, including:

Interpretation of a Will

Mistakes and ambiguities can arise in a Will. They are most common in ‘DIY’ Wills where the Will-maker is unlikely to have taken legal advice and may not have understood the legal ramifications of writing their own Will.

Typical errors range from excluding a rightful beneficiary, such as a dependent; inadequately describing an asset; unclear terms as to who inherits on the death of a beneficiary; and purporting to leave an interest in a property they did not own.

Potential ambiguities that may give rise to a dispute include lack of clarity around the testator’s true wishes; and a failure in the intended tax mitigation behind the Will.

Our expert trust solicitors understand complex family trust arrangements and have helped many to resolve disputes to protect their wealth.

• Concerns you may have regarding the administration of a trust
• Removal of trustees
• Court applications to vary the terms of a trust

The process of making a claim depends on whether the Grant of Probate has been issued. The issuing of the Grant can be paused by lodging a caveat with the Probate Registry; but if it’s already been issued, you only six months in which to start a claim.

Assuming your claim has merits, we would send the executors formal notice of the dispute. We might need to ask the court for rectification of the Will to give effect to the testator’s true wishes and reach the best result for you.

Value of the estate

Disputes around the value of an estate can arise in various ways, eg how a property or interest has been valued; trust assets erroneously included within the estate valuation; and HMRC refusal to apply tax relief to an asset.

Such cases can be complex and we will need early access to documents and other information to assess the issues.

Challenging an executor

Executors have important legal and administrative responsibilities, including collecting in the assets, paying the debts and distributing the assets under the Will’s terms.

Where the Will creates a trust, the executor may also be a trustee – which imposes further legal duties. An executor (and trustee) who fails in their legal duties can expect to attract a claim.

Beneficiaries can bring a claim against executors for breach of duty where their conduct falls short, for example, unreasonable delays, distributing assets incorrectly or prematurely, or where they are not acting in the best interests of the beneficiaries and the estate.

We could ask the court to replace an executor. This may be appropriate if relationships have broken down irreparably, but we can discuss the options with you.

Contested probate where there is no Will

Despite the importance of having a Will, around two-thirds of UK adults do not have a valid Will. Some people don’t want to confront death while others don’t think they need one.

Then there are cases where the deceased left a Will – but no one knew about it. In a recent case, a 35-year-old man died apparently without a Will. 10 years after his death, a Will was found and a claim was brought. As it happened, the estate had not been distributed because of a family dispute. Allegations of forgery were not substantiated, and the court ruled the Will was valid – revoking the letters of administration granted to the deceased’s mother.

Where someone dies without a Will (‘intestate’) the intestacy rules under the Inheritance and Trustees Powers Act 2014 (ITPA) set out who inherits the estate. Where the deceased leaves a spouse (or civil partner) and no children, the spouse inherits the whole estate. But it’s less straightforward where there are children:

• The spouse (or civil partner) inherits the deceased’s personal belongings; the first £250,000; and an interest in half of the remaining assets (the ‘residuary estate’).

• The surviving children (this excludes stepchildren) inherit the remaining half of the residuary estate on reaching 18.

However, the law recognises that the application of the intestacy rules in some cases can be unfair if someone was financially dependent on the deceased.

Inheritance Act claims –The Inheritance Act 1975 permits anyone who was a dependent, spouse or child of the deceased to claim ‘reasonable’ financial provision if the intestacy rules or the Will (if there is one) fail to provide it. You only have 6 months to bring a claim.

Specific factors are considered when determining what is reasonable financial provision, such as your present and future resources and the value of the estate.

If you need to bring a claim, our specialist solicitors can advise what may be reasonable in your unique circumstances and attempt to negotiate a settlement with the other side.

Creditor claims – Unknown beneficiaries can later emerge, claiming a slice of the estate, for example, estranged children whose identity and or location are unknown.

In most cases, executors take formal steps to protect themselves from such claims. But a recent court ruling shows they might not always be protected, particularly in the case of currently unascertained creditors, such as unknown victims of sexual abuse (Re Studdert [2020]), where distribution of the estate has been paused for now.