Contentious Probate

There are generally two main areas for contesting a will; firstly that the will is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who has been financially maintained by the deceased before their death.

There are various grounds:

• A lack of testamentary capacity, i.e. the capacity to make a Will;
• Lack of knowledge and approval of a Will;
• A failure to comply with the rules for executing a Will;
• Undue influence or coercion;
• Fraudulent Calumny; and
• Fraud or forgery.

Each of these claims raise various obstacles and some challenges are easier than others. For example, a claim of undue influence is generally difficult to successfully prove without strong evidence. But what they all have in common is the necessity for experienced advice from the outset.

Certain persons such as family members, including spouses and civil partners and children as well as cohabitees may contest the validity of a Will. Also, a person mentioned in the Will (or in a previously revoked will or someone who would otherwise benefit from the Estate under the intestacy rules) can also challenge the contents of a Will but only if there are sufficient grounds to do so.

In 1975 Act claims, the legislation sets out who can make a claim for “reasonable financial provision” from the Estate. These classes of person include spouses and former spouses or civil partners, cohabitants, children and individuals who the Deceased supported financially during their lifetime. Read more detail in our blog. 

Claims under the 1975 Act have become more common in recent years but to be successful significant legal hurdles must be overcome. Where a person qualifies to be an applicant under the 1975 Act, this does not automatically mean they can launch a successful claim. It depends very much on the circumstances of each case.

This is not an exhaustive list but the 1975 Act sets out a list of factors (including the financial position of the parties/the obligations owed to those parties by the Deceased and the health of the parties and their conduct) which the Court must take into account. The most important factor is arguably the financial position of the parties and whether the applicant was the spouse of the Deceased (as they have stronger claims than all other categories of applicant). But all the factors have to be taken into account.

Time is very much of the essence and any claim should be commenced within six months of the date of the Grant of Probate or Letters of Administration. It is still possible to apply outside this time, but it is risky to do so and there is nothing to be gained from leaving yourself open as a hostage to fortune if the claim can be commenced within the time limit. Read our blog for more information.

Yes, when the Deceased leaves no Will, the intestacy rules will apply but this does not preclude a claim under the 1975 Act. The intestacy rules set out a strict line of entitlement which determines the order in which an Estate is distributed and who can administer the Estate. It is still possible to bring a claim under the 1975 Act even if an intestacy arises provided the applicant falls within a class of persons entitled to claim for reasonable financial provision under the Act.

This depends on the precise circumstances and is called a Proprietary Estoppel claim. You would have to prove there was a promise, you relied on that promise to your detriment and you suffered a loss as a result. Such claims regularly arise in farming disputes.

This is difficult but not impossible and requires a Court Order.

The Personal Representatives have to act in the best interests of the Estate. Provided they are undertaking their role diligently and in accordance with the Will or intestacy rules, removing them may be difficult. And it isn’t enough to claim the Personal Representatives and the beneficiaries do not get along. There has to be a real threat to the Estate. The Personal Representatives cannot profit from the Estate and must treat all beneficiaries equally. If the Personal Representatives are dragging their feet or not acting in the best interests of the Estate generally and this can be demonstrated, they can be removed by the Court if it is reasonable to do so.

Yes, provided they have done nothing to ‘intermeddle’ with the Estate. But once they start to administer the Estate to any degree, they have to see the task through to the end.

The Executor’s primary role is to collect in the assets of the Estate, pay any liabilities and inheritance tax if applicable and then distribute the balance in accordance with the terms of the Will. The Administrator has the same job save that the Estate is distributed to the beneficiaries under an intestacy.

In some instances, the Executor/Administrator may fail to fulfil their roll adequately or quickly enough. In those circumstances, it is open to the beneficiaries to apply to Court to have them removed or replaced but only if there is sufficient merit in making such a claim.

No, it is always open to the parties to try and resolve their differences between themselves. Litigation is always considered as the last resort and even then, the parties will be continually obliged to keep open their door for negotiation. If a party marches onto Court regardless and fails to consider mediation without good reason, they may find themselves on the end of a less advantageous costs order even if they win.

There is now a mediation industry in place that can help the parties resolve their differences without the cost and risk of going all the way to trial. At TFS, we have a great deal of experience acting for clients in mediation.

This varies hugely from one case to the next. Charles Dickins alluded to this in Jarndyce v Jarndyce, a fictional probate claim referred to in Bleak House where the claim went on for so long that parties were born into and died out of it, dragging on as it did for generations. That won’t happen of course because the Court manages all claims under its Civil Procedure Rules management powers. But such claims can still take 1-3 years to come to Court and sometimes longer. It depends on the complexity of the matter because all claims, like the families they affect, are unique.

At TFS we will aim to resolves your dispute as quickly, cheaply and efficiently as possible without compromising your position prematurely.

It is important to be properly advised at every step of any claim. This is a specialist area with considerable costs consequences for the loser at a trial. This is also a complex area of law and it is prudent to take adequate advice at the right time and before you embark upon or find yourself facing a claim. Case law often determines the outcome in such claims and it is important to know what the most recent developments are.

The most common form of alternative claim is Proprietary Estoppel. This oddly sounding concept effectively relates to broken promises.

Such claims often arise in the context of an agricultural background (but not always), namely where a landowner promises their child that “one day all this will be yours” or words along those lines.

That child then works long hours for low pay over many years only to learn their parent has executed a Will which leaves it to other beneficiaries (or allows an intestacy to take place) such as their spouse or children equally.

These claims have four elements:

• There must have been a promise made by the donor.
• The donee of that promise must have relied upon it.
• The donee must have acted to their detriment in reliance of the promise.
• Taken together, this must amount to unconscionable conduct on the part of the donor.

Once again, specialist advice should always be obtained if one is considering or facing a Proprietary Estoppel claim.

If you are challenging a Will or are involved in any probate dispute, Court proceedings can be costly, and the expenses involved can vary significantly depending on the complexity of the case.  

Here are some key points to consider:

• General rule: Typically, the loser will bear the winner’s costs - or at least a percentage of them - if the matter is determined following a trial.  The judge usually decides how much the losing party pays of the winner’s costs or it will be determined by a specialist costs judge at later hearing.  The winner never receives all their costs and will have to bear a proportion themselves.  
• Exceptions: There are exceptions where costs can be awarded out of the Estate, such as when the terms of the Will were ambiguous, or the conduct of the testator of the Will caused the litigation.
• Costs range: If the case is resolved quickly, legal fees might range from up to a few thousand pounds plus VAT.  However, more complex and fiercely contested cases can incur significantly higher costs running into many tens of thousands of pounds.
• Offers to settle: Making an offer to settle (e.g., a Part 36 offer) can influence the costs recovered.  If the offer is not matched or beaten at trial, the party making the offer may benefit from significant costs advantages.  
• Court’s discretion:  It is always worth bearing in mind, especially for those involved in disputing the validity of a Will or any other contentious probate matter, that the Court ultimately has the discretion to order the costs be paid either by one or more of the parties or out of the Estate.  

Navigating contentious probate can be challenging, so it’s beneficial to seek legal advice to understand the potential costs and explore options like mediation to resolve disputes more cost-effectively.

We have considerable experience dealing with all kinds of probate claims. Our clients are our highest priority and given the personal nature of such claims, we will treat you with sensitivity, professionalise and integrity at all times. We are dedicated to ensuring we achieve the best outcome for our clients who are on your side every step of the way. We will ensure you receive quality service and advice. 

So if you are thinking about contesting a Will or are facing a claim, or have concerns about the way Personal Representatives are conducting themselves, please contact Noel McNicholas on 01926 887700 or noel.mcnicholas@thomasflavell.co.uk.