When most people die, they leave behind some money, property or other possessions. This is usually passed onto to family or friends in accordance with the deceased’s will. Yet wills are not always deemed fair by those who had hoped to benefit, and that can lead to a contentious probate. They may reignite family rifts, reawaken sibling rivalries, and cause tensions and arguments at a time of great sadness.
Family arguments can lead to the will itself being contested and potential beneficiaries making claims on parts of the estate. Contentious probate – when there are problems and arguments over who should get what – is a difficult situation for all.
If you’re wondering what is probate and when is probate required, read our expert guide to probate.
What is contentious probate?
Probate is usually straightforward. The estate – made up of the deceased property, assets and belongs – is divided up among beneficiaries in line with the deceased’s wishes. If they died without a will, then there are strict legal rules that divide the estate among relatives in a specific pecking order.
Yet sometimes probate can be drawn out due to arguments – known as contentious probate – and is usually linked to someone contesting a will.
Wills are legal documents that set out how a person’s estate is to be dealt with, who the beneficiaries are and what they will receive from the estate. The deceased (known as the ‘testator’ of the will) is entitled to make beneficiaries of whoever they wish. There is no legal obligation to benefit family members.
Being left out of a will can come as a surprise to family and friends who may have been promised something after a person dies. It can be the starting point for contentious probate. In recent years, contentious probate has become increasingly common.
Contentious probate – grounds for contesting a will
As a will is a legal document, there are strict rules in place to ensure it represents the true and final wishes of a person. Simply jotting down your wishes in a notebook doesn’t constitute a will – it must be properly stated, witnessed and structured. Contesting the validity of a will is possible if it is suspected that these requirements have not been met. Wills can be contested for many reasons but here are some of the main ones:
The deceased lacked the mental capacity to make the will – A person making a will must be of ‘sound mind, memory and understanding’. This means they must have the mental capacity to understand what they are doing and the effect of their actions. They must know the nature and value of their estate. If a will is signed on someone’s behalf, it must contain a clause saying they understood the contents of the will before it was signed.
If you believe that the deceased lacked the mental capacity to understand what they were doing, for example, because of mental confusion caused by dementia or the effects of medication, then the will can be challenged on the basis that they lacked ‘testamentary capacity’.
Testamentary capacity is actually a factual issue, and medical evidence is often used to determine if this applies. Much depends on the deceased state of mind at the time of making the will. Evidence of friends and family, the will drafter and witnesses to the will is often relevant to the outcome of the challenge.
The will was signed under duress – The person signing a will must do so willingly, with full consent and being fully aware of what they are signing. Anyone forced to sign a will, such as by intimidation or emotional pressure, may be seen as has having signed under duress. Anyone contesting a will on this ground could request to have the will invalidated. Proving duress is difficult during contentious probate – you’ll need to prove actual undue influence with solid evidence showing this was the case, rather than something you suspect was the case.
Lack of knowledge in signing a will – Similar to the point above about duress, a challenge when contesting a will during contentious probate is that the deceased lacked knowledge of what they were signing. If the deceased didn’t know they were signing a will or know the entirety of its contents, then contesting a will can hinge of how informed they were of the detail in the will. This is especially true if the will was prepared by a third party for the deceased without their authorisation and then presented to them to be signed, or where health issues such as poor eyesight or mental capacity could have hindered knowledge of what was being signed.
The will wasn’t executed properly – Wills have to be witnessed and signed properly. Anyone who is a beneficiary in the will is prohibited from signing it as a witness. If they do, they automatically become unable to benefit from the will itself. The will has to be signed in front of two witnesses, who then countersign at the same time.
The will is a fake – A will can be contested if you believe it has been forged or some form of fraud involved in making the will has taken place. This may include the forging of a signature or something less obvious such as undue influence on the deceased involving telling a lie so one beneficiary is treated more favourably in the will than another.
Contentious probate – who can contest a will?
Legally, anyone can contest a will. As long as someone contesting a will believes they have a valid claim, then they can take action. In reality, this is someone who feels they should have benefited in a particular way or obtained a specific share of the estate or conversely disputes the share that another beneficiary has received under the terms of the will.
Dependents have more grounds in contentious probate to contest a will. While the deceased can leave their estate to anyone they please, under the Inheritance Act of 1975, a will can be contested if it fails to make reasonable financial provision for dependents. A dependent is someone who the deceased was supporting financially on a regular basis, and therefore their death would mean that financial support would stop.
Usually, dependents are surviving spouses, children or adult children who were being financially supported by the deceased, as well as individuals treated as a close family member. The Inheritance Act covers cohabiting partners, provided they have lived with the deceased for at least two years.
Learn how to make a will – from dividing your estate to choosing an executor – with our guide Making a will: how to make a will.
What are the time limits on contesting a will?
There are some time limits when it comes to contesting a will, and if you plan on contesting a will you’ll need to act fast. There is one exception with no time limit: if fraud is involved or the will is subsequently found to be fake, then the will can be revoked years or decades later.
Generally, it’s best to contest a will within six months – especially if you’re using the Inheritance Act to make a claim for financial support as this has a strict six-month limitation – and ideally before a Grant of Probate is issued.
There are different time limits, so it’s best to get legal advice when contesting a will, but broadly the time limits are:
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How to contest a will
To contest a will, you should:
Get legal advice covering contentious probate – Check you have a valid claim on the will, supported by evidence. You’ll need to have a convincing argument that you are certain would stand up in court. A probate legal specialist will be able to help but expect fees to be expensive.
Lodge a caveat with the Probate Registry – A caveat stops the Grant of Probate being issued for six months. It expires after six months but it can be extended or removed by writing to the Probate Registry.
Assemble the evidence – The six-month pause on Grant of Probate by the caveat allows all parties to assess the situation, review the claim and decide whether the contested will challenge has merit.
Most disputes can be settled through mediation without having to go to court. Mediation allows both sides to discuss concerns and agree on how to solve the dispute themselves. It can also help reduce the negative fallout that a dispute can have on family relationships. If mediation fails, then court proceedings are usually issued and a judge will assess the claim and call for a trial to decide the validity of the will.
Contentious probate – the costs of contesting a will
When hiring a solicitor to help with contentious probate, it’s worth knowing the different types of fees involved. Be warned that legal fees can quickly spiral, especially if the claim is particularly acrimonious. The best advice is to keep emotions in check and seek to find a compromise position as quickly as possible.
Contentious probate solicitors have several fee structures:
Fixed fee – This is one of the more manageable fee structures – you agree a fixed price for contesting the will.
No win, no fee – Many probate solicitors and law firms operate on this basis. The cost of any legal work is taken from the funds you receive should you win your contentious probate case. No win, no fee pricing can be either a set fee or more usually a percentage of the amount you win – and this can be around 25%. If you lose, you won’t pay anything.
If the claim is successful, the winning party can apply to have their legal fees paid for by the losing party or the estate. This is not guaranteed, however.
