Contentious Probate

When an Estate becomes contested, the Thomas Flavell & Sons team is here to help you.

Contentious probate disputes come at a difficult time and whether you’re an executor, a beneficiary or a disappointed beneficiary, arguments concerning how an Estate should be distributed must be handled with tact and sensitivity. We will listen to your position, consider any countering claims and use our expertise to guide you towards a resolution quickly and efficiently.

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Expert Contentious Probate Solicitors

Our Team can assist you in Contentious Probate matters with offices in Leamington Spa, Hinckley and Stoney Stanton.

Whether you are local to Warwickshire or Leicestershire, or not, we can assist face-to-face or by video call.

What is a Contentious Probate dispute?

These are disputes surrounding the circumstances relating to preparation of a Will, the administration of the Deceased’s Estate or the distribution of their assets.

It can include examining the validity of the Will or the conduct of the Executors/Administrators of the Estate. Where there is no Will (which is known as an intestacy), disputes often arise in respect of the automatic rules they will apply to the distribution of the Deceased’s Estate. An intestacy can result in a very different outcome to what the Deceased would have wanted, which underlines the importance of making a Will.

The Inheritance (Provision for Family and Dependants) Act 1975 (known as the 1975 Act) also acts as a route for anyone entitled to raise a claim for financial provision against the Estate, provided they fall within a class of applicant permitted by it and within prescribed time limits.

How would I challenge a Will?

There is a distinction between (1) a claim regarding the validity of a Will and (2) a claim for financial provision against the Estate.

Will validity claims

There are numerous potential routes of challenge to the validity of a Will. These include:

  • Whether the Deceased had the capacity to make a Will
  • Whether the Deceased had knowledge and approval of their Will
  • Were they subject to undue influence
  • Was the Will executed strictly in accordance with long established rules concerning its signing and witnessing
  • Was there any suggestion of fraud or forgery

Some claims will involve two or more these challenges as overlaps between them can arise depending on which challenge is raised.

It will be up to those who wish to prove the Will is valid to assert before a Court that is the case, except where undue influence, fraud or forgery are alleged. In those instances, it is for the challenger to prove those grounds exist to set aside the Will.

Financial provision claims

For 1975 Act matters, this is a claim for reasonable financial provision.

This means the applicant is alleging the distribution of the Estate - either by the terms of the Will or intestacy - do not provide enough, if anything, to the applicant.

1975 Act claims are often raised as an alternative where there is no question concerning the validity of the Will.

Who can challenge the validity of a Will?

Broadly speaking, it will usually be family members of the Deceased or any other party (including charities and friends) specifically mentioned in the Will or a revoked Will that wish to question its validity or effects.

Who can make a financial provision claim under the 1975 Act?

You must fall within a specified category of applicant (i.e. certain family members or dependants). Not all family members can make a claim.

Any claim under the 1975 Act is largely dictated by its own unique circumstances. There are a range of factors set out in the 1975 Act to always take into account, but whether the claim succeeds is purely down to the finances and the family dynamics of the applicant and/or the beneficiaries. There is a tight timetable to make the claim as set out below.

Claims under the 1975 Act can only be made against a Deceased who was domiciled in England or Wales.

How do I contest a Will or make a financial provision claim?

It is initially necessary to assess the merits of a potential claim to understand if it would be worthwhile and/or cost effective.

Claims of this nature should only be undertaken by solicitors specialising in contentious probate matters and ideally they will be members of ACTAPS - The Association of Contentious Trust and Probate Specialists.

Any potential applicant must be aware of strict time limits, particularly in relation to the 1975 Act. Although there are circumstances which allow claims under the 1975 Act to be brought late, generally speaking such claims must be made within 6 months of the date of the Grant of Probate. Until a Grant has been obtained, the stopwatch has not started. It is always best to aim to commence the claim within this six month time limit, unless a standstill agreement can be reached to allow the parties to negotiate.

If the claim relates the validity of the Will, it is generally better to address this sooner than later as memories of important witnesses will fade over time.

Will I end up in Court if I am making or facing a Contentious Probate claim?

Not necessarily. Unless the dispute can be resolved by negotiation, Court proceedings will be the inevitable route to disposing of the claim. But most claims of this nature are very suitable to be resolved without a Court hearing, either by direct negotiation or mediation. It is always important to keep an open mind to try and resolve matters without expensive and sometimes risky Court proceedings where the general rules is the loser pays.

However, if the claim involves a child or a person under a disability either as a claimant or beneficiary, proceedings will be necessary as the Court must always ratify any settlement.

What steps do I take if I believe a Will is invalid?

Taking prompt action is imperative as there can be a danger the Estate will be distributed promptly and this makes it harder to claw back the assets from the beneficiaries.

It is far better to preserve the position and this can be done by filing a Caveat. This is a notice filed at Probate Registry preventing the Grant of Probate from being issued, which in turn prevents the Executor or Administrator distributing the Estate. What follows this process is quite complicated but it initially buys the Caveator some time to make further investigations and representations as to their position.

It must also be borne in mind whether a Caveat will assist the Caveator in any event, as there are circumstances where it will not.

But it is still possible to make a claim even if the Estate has been distributed.

What about claims to remove an Executor/Administrator?

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.

Are there any other types of contentious probate claims?

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.

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For more information, please contact our team today.

Our Contentious Probate Team

Frequently Asked Questions

For most clients, the world of probate disputes is thankfully an unfamiliar one. But when the circumstances align and such a claim appears on the horizon, it’s important to know from the outset what can be done. So we have compiled a list of common queries we receive about this sensitive area to help your understanding.

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;
  • 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.

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.

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.

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.

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.

Let's get started

For more information, please contact our team today.

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