When a dispute arises regarding the validity or contents of a Will, or how the deceased’s estate is distributed after death, this is known as Contentious Probate. It can be a complicated and, at times, stressful process that requires sensitive legal handling.
Here is our brief guide to contested probate, what it is, what needs to be considered, and how to proceed if you think you have grounds on which to contest a will.
Can probate be challenged?
Probate can only be challenged either by a beneficiary under the current or previous will, someone who was financially dependent on the deceased, a family member, or you believe you were promised something by the deceased that was not granted in the will.
To challenge a will for failing to make a reasonable financial provision, you will need to be a financial dependent, such as a spouse, civil partner, ex-spouse or ex-civil partner who is yet to remarry, a cohabiting partner or a child.
If the court decides that a will is invalid then the estate’s distribution will be at its discretion. This means that there is no guarantee that the person challenging probate will receive anything. The court will usually distribute the estate according to the most recent valid version of the will. This means that you will once receive something if you were named in that version. If there are no surviving family members, the estate will go to the Crown.
Our experienced team of Will and Probate experts will be able to advise you about your eligibility to challenge probate and how best to proceed.
What do you need to contest probate?
If you intend to contest probate it’s better to do so as early as possible in the process. Contesting a will after probate has been granted is possible, but it can be costly and will require additional legal advice. The longer you wait to contest probate the greater the chances that the estate will have been distributed.
If you wish to proceed the first step is to gather a number of key documents. Firstly, you will need a copy of the will. This will allow you to assess the contents of the will and compare it to how it is being executed. There is no legal requirement for the executor to share the contents of the will but protocols encourage relevant documentation to be shared.
If the executor still refuses to provide copies of the will then legal advice may be required. Once the executors apply for probate the will becomes a public document so you will be able to obtain a copy without the executor’s agreement.
If the grant of probate has been issued then you should obtain a copy. This will give you information about when probate was granted and the value of the estate.
Typically, wills are challenged by close family members such as spouses, children or siblings but this is not always the case. Close friends have no automatic right to challenge a will. As well as family members and beneficiaries under the will, creditors and those who believe a promise was made to provide an inheritance by the deceased, can contest the will.
It’s also possible to challenge a will on behalf of someone else, such as when a parent challenges a will on behalf of a child of the deceased.
You should also be clear on the grounds on which you intend to contest probate.
How do you fight probate?
Contesting probate can be a long and drawn-out court process and a legal contest should only be considered as a last resort. The first step should be to seek advice from a probate solicitor. They will discuss your options and suggest a way forward. If there is a family consensus that the Will isn’t valid due to a lack of mental capacity, the solicitor will help you build a case to take to court.
If the Will is being contested as a result of a disagreement between beneficiaries, then mediation may be suggested. All parties are brought together with an experienced legal mediator to try and find a solution. If negotiations break down and an agreement can’t be reached, then you will need to work with your solicitor on building evidence for a court case.
What happens when probate is contested?
Contentious Probate cases will be heard in civil court with no jury present. The judge will hear the evidence and then make their ruling.
What grounds can you contest probate on?
There are a number of grounds by which probate can be contested. These include:
- Lack of testamentary capacity – this is the mental capacity necessary to make a valid will.
- Lack of due execution – the will has not been executed correctly, such as being signed and witnessed correctly.
- Lack of knowledge and approval of the will – the content or meaning of the will was not properly understood.
- Under influence or duress – pressure was placed on a person to change or make a will.
- Fraud or forgery – a signature was faked or unauthorised changes were made to a will.
- Rectification and construction – the will is ambiguous or unclear or doesn’t carry out a person’s wishes or intentions.
How long do you have to contest a will?
The length of time you have to contest a will depend on the grounds by which you’re proceeding. If you are making a claim under the Inheritance (Provision for Family and Dependents) Act 1975, the time limit is 6 months from the date of grant of probate. There are certain circumstances in which you can make an application to the Court to bring a claim beyond this period, but you must have sufficient grounds to do so and permission is at the discretion of the Court.
There is no defined time limit for any claim based on validity, capacity, undue influence, want of knowledge or fraud. In practice, once the estate is distributed it can be very hard to revisit the distribution and reclaim assets. Executors will normally attempt to administer an estate within 12 months so the sooner they are alerted to a claim the better.
If you have any concerns about a will or you are considering contesting probate, our experienced team of Will and Probate specialists can offer advice and guidance.