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Contentious Probate. As soon as any audience hears the words come out of my mouth, they’re most likely wondering why I’m so fired up. The subject may sound positively soporific – but within those two words lie a whole ecosystem of drama, resentment, confusion (and even heartbreak) as families endure the dual stressors of losing a loved one, and dealing with the reality of a will which may not have dealt with matters of an estate in the way intended.
I made a decision a long time ago to dedicate every ounce of energy and creativity I had not only to settling the issue at hand, but also working to ensure that affected families had a way forward in the weeks, months and years after a family will dispute. When there are grounds for family members and dependants to bring a claim, there are more than material and financial assets at risk.
As solicitors, it is our responsibility to work together to ensure that the originally intended inheritance provision for family members is in place and also that the family remains intact wherever possible. Our primary goal when dealing with such sensitive matters is to work towards mediation and settlement – and avoid the need for costly and stressful litigation.
So what exactly is probate?
Probate is the word normally used to describe the legal and financial processes involved in dealing with the property, money and possessions (called the assets) of a person who has passed away.
Before the next of kin (also know as the ‘Executor’) named in the Will can claim, transfer, sell or distribute any of the deceased’s assets they may have to apply for Probate.
When Probate has been granted – through a Grant of Probate or Letters of Administration, the Executor can start to deal with the deceased person’s assets in accordance with their Will. If someone dies without a will, the law will determine who should receive everything, see Probate without a Will for further details on this scenario.
Contentious probate is a dispute relating to the administration of an estate. Sometimes a person will dispute the validity of a Will or contend that the Will was made under duress or by way of undue influence. In some circumstances, the lawyer will assist a client to pursue a claim where there is no Will at all.
The job of a contentious probate lawyer is to ensure that assets go to the chosen beneficiaries of the loved one who passed away.
A wide range of disagreements can fall under the definition of contentious probate. For example, difficulty can be experienced if those responsible for the administration and distribution of an estate fail to manage affairs properly, or act in a way that would cause suspicion to others who are entitled to make a claim.
Sometimes, the person who passed away had during their lifetime appointed a power of attorney, giving someone the ability to deal with financial affairs on their behalf. It is becoming increasingly common in an increasingly ageing population, for those with such power to abuse it – and misappropriate assets that may rightfully be claimed by others who were intended to receive them by the person who died. This will often come to light after death – and at the worst possible time.
Van Eaton Solicitors has in such cases been successful in returning funds to intended beneficiaries that were misappropriated.
Many who pass away leave money or assets in a trust and disagreements often arise around ownership or use of property or money in that trust. Trustees may disagree or fail to adhere to the wishes of the deceased resulting in a dispute with those entitled either now or in the future.
Examples of typical contentious probate disputes:
Challenges over the validity of a Will or ‘Codicil’ (an addition or supplement to a will).
It may be argued that;
- A will was not signed or witnessed correctly
- that the deceased person did not have the mental capacity to make a valid Will
- that they were being coerced, did not know or approve of the contents, or that there is in fact a later valid Will in existence.
There are also incidents where fraud is involved, and a Will has been forged.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 – This allows the court to exercise discretion and award reasonable financial provision out of a deceased’s estate, e.g. (“estranged daughter gets a share of mother’s estate”). The Act applies whether there is a valid Will in existence, or not.
If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will. Intestacy rules simply refer to the distribution of assets of an ‘intestate’ person (someone who did not have a valid will upon death).
If you have been affected by any of the issues as described above, we’re here to help. You need support from a law firm that understands the wider implications of Probate disputes.
We serve customers across England and Wales – and are on hand to help with a range of issues. For an informal discussion to understand if we can assist, please get in touch using the form below.