Contested Probate
When a person dies, their property and affairs have to be sorted out by the people left behind. How this happens, and who is in charge of the process can vary.
The most important consideration to find out is whether the deceased person made a Will. Provided it meets the legal requirements, this need not be a formal legal document. A will has two main functions:
- It sets out how they would like their assets to be dealt with/who given to. The people or organisations who are given something under a Will are called “beneficiaries”.
- It names the people who will have the power to deal with the persons property and affairs. They are called “executors”.
The executors must apply to the Probate Registry for a grant of representation/grant of probate. This authorises them to carry out the terms of the Will.
What happens if there isn’t a Will?
There are lots of reasons why people die without a valid will. They may never have made one in the first place. The Will they thought had been made may be invalid.
Where there is no Will, the law has set down a series of rules which set out how the person’s assets are dealt with- known as “the intestacy rules”. However, the bits you really need to know are:
- The husband or wife (“spouse”) will normally be entitled to the first £250,000. This can mean children may not get anything.
- If there is no surviving spouse, the estate is divided equally between the children of the deceased.
Someone will still need to apply to the Probate Registry to authorise them to deal with the estate. They obtain a different type grant of representation (in these circumstances called Letter of Administration).
What happens if the outcome is wrong or unfair?
It is possible to challenge the effect of a Will, You can do this if you believe that the will itself isn’t valid because of the way it was made or signed.
However, you can also challenge a perfectly valid will if you think that the will has not made reasonable financial provision for you and you believe that it should have.
You can also challenge the effect of the intestacy rules (see above) in the same way. The piece of law which allows you to make these challenges is called the Inheritance (Provision for Family and Dependants) Act. It has actually been around since the 1970’s, but is increasingly common these days where there are more second spouses and step-families. Of course, what is reasonable will depend on the circumstances, but the main things to consider include:
- The value of the estate.
- The nature and history of the relationship between you and the deceased person.
If you think you may have a claim, it is worth talking it over with us in the first instance. You have a much shorter timescale than with most court claims. You must issue a claim within 6 months of a grant of representation being issued.
Cases we have acted on
Inheritance (Provision for Family and Dependants) Act.
- Defended an Inheritance Act claim (see above ) by “second” spouse for in interest in multiple properties. Some of these properties had been in the family for decades.
- Managed the understandably high levels of acrimony and ill feeling between the parties.
- Negotiated a settlement which preserved the main family home.
Disputed Will/Capacity issues
- Acting for a client who stood to inherit the whole of her mother’s estate under a will made shortly before death. Some of the other siblings (of whom there were nine!) disputed the validity of the will and threatened court action.
- We attempted to reach an agreement between the family. When negotiations broke down, we persuaded other siblings to drop their opposition and allow our application for probate to proceed.
- This meant that our client has been saved the costs and worry of a court claim.
Contact us to find out more or to arrange a consultation.