There are various rules that dictate when you might be able to contest probate. You must be able to show the will is invalid, and you must be a close family member to the deceased.
When a loved one dies, it is, of course, a highly upsetting and fraught time. There are many arrangements to be made and things that must be taken care of, all while dealing with the feelings of losing someone close to you.
These are only exacerbated when the deceased’s final wishes aren’t properly met, or when someone tries to take advantage of the situation by claiming probate that isn’t fair or just.
Read on to find out more about contentious probate, and the rules surrounding making a claim.
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Probate is the process of handling a deceased person’s affairs and estate and ensuring any funds or properties are left to the right people as per their final wishes. If someone has left a will, then the executor must apply for a ‘grant of probate’ while if there is no will, the next of kin would instead apply for a ‘grant of letters of administration’.
Both are similar in that they grant you the power to manage the estate, including settling any debts, closing any accounts, claiming any life insurance and then paying out the remaining estate to the beneficiaries that are either declared in the will or are decided by intestate law.
If you aren’t the executor or the direct next of kin and you have concerns about the grant of probate, then you may be able to challenge it. Be aware that contentious probate can be a long and costly process, but it can be important either to ensure a will is correctly followed or to grant you the portion of the estate that you feel you are due.
Firstly, the will must be valid as per the requirements set out in the Wills Act 1837. This states that the will must be written down, it must be signed by both the person writing the will and two witnesses, and it must be clear that the person writing the will knew what they were agreeing to when they signed it – so space, where the signature is made, must include a statement that summaries the signatory recognizes this will above all others they have written, with a date against the signature.
Then, if a will is deemed valid (and there are many reasons it may not be, which we’ll cover shortly), you can still contest it if you feel that the executor isn’t following the instructions within the will. If the executor is following their own best interest and disregarding the wishes of the deceased, then you have the right to challenge it and potentially claim the probate to execute the estate yourself.
There are other reasons too that could show the will was invalid when it was written. If you have evidence for any of these, then you absolutely can make a claim to contend probate.
The first of these relates to fraud and forgeries. Unfortunately, there are cases where someone will be aware that no will existed, and will instead forge one that identifies themselves as the primary beneficiary. Or, the will might have already existed but has been fraudulently altered – details might have been slightly changed to prevent part of the estate going to its intended destination.
Finding evidence for fraudulent or forged wills can be tricky, but you’ll know the deceased well, and so if something doesn’t feel right, you are within your rights to contact a solicitor. They’ll be able to make suggestions on where you might be able to find legitimate evidence to ensure you have a solid case.
Equally, you could believe that a will was written under influence or duress. Many people may not have been acting under their own free will when creating or changing a will, particularly older members of society who are often less likely to defend themselves when confronted by a family member. If you feel that the will was created under coercion, you again may be able to find evidence that suggests that would be the case.
Another common reason is that a person may not be of sound mind when they created their will. The job of a will writer is to ensure that the will they put together for a client is legally binding but, over the course of one meeting, it can sometimes be impossible to know if a client is acting completely of sound mind.
If they are suffering an illness which impacts them cognitively, they could create a will which isn’t a reflection of their true wishes. Again, evidence will be needed, but if you have medical records that show a diagnosis of a cognitive illness before a will was written, then you may have a solid case.
Finally, there are rules around who can make a claim under the Inheritance Act 1975. You’ll only be able to claim if you’re a close relative – specifically a spouse (either married or in a civil partnership) or a child. If you’re a live-in partner that wasn’t married or in a civil partnership with the deceased, you may be able to make a claim as long as you’ve lived with them for at least two years.
When you decide to contest probate, you should appoint a solicitor to act on your behalf. They’re experts and can tell you whether you have a case, as well as preparing counter-arguments if the other party doesn’t relent.
They’ll try to resolve any obvious issues immediately but then recommend a period of mediation. This isn’t supervised by the courts and is designed to help you come to a satisfactory conclusion with the appointed executor. There may be some back and forth, but hopefully, you’ll resolve the problems at this stage.
If you don’t, then the case will go to court and ultimately a trial where a judge will make a final ruling. Few cases ever get to a trial – it’s believed to be around 2%. Most contentious probate cases are resolved at mediation.
The cost of contenting probate can vary wildly depending on the value and complexity of the estate, how long mediation lasts and whether it ends up at trial. As an absolute minimum for the simplest of cases, you should expect something between £500 and £1,500 for your solicitor fees.
However, if it does go to court and you lose the case, you might end up having to pay extensive legal fees both for yourself and the other party. Precedent shows that this can be very high, potentially into six figures if the case has dragged on for a long time.
That’s why it’s absolutely vital that you appoint a solicitor who is a specialist in the area and who can help to manage your expectations so that you don’t wildly and irresponsibly chase a case that you aren’t likely to win.
Here at Money Savings Advice, we have partnered with some of the UK’s leading Contested Probate claim management companies. They have already helped thousands of people make successful probate claims and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a probate claim, then click on the below and answer the very simple questions.
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