Making Sense of Contentious Probate

Contesting a Will

In recent years Solicitors have seen a significant rise in disputes relating to Wills and probate. This increase is thought to be due in large part to changes in society including:

In this article, we will look into the domain of contentious probate and what can be done to resolve matters of this nature.

What is contentious probate?

‘Contentious Probate’ is the term used where:

Claims which relate to challenging a Will because a Will does not make reasonable financial provision for an individual (e.g. if an individual has been left out of a Will or left with insufficient provision) are dealt with separately under the Inheritance (Provision for Family and Dependents) Act 1975 – please see our blog ‘What can you do if you have been left out of a Will or if a Will makes inadequate provision for you? ‘ which provides further information about these types of claims.

How is a claim for contentious probate handled?

 Sufficient interest

 To bring a claim for contentious probate, a person must have ‘sufficient interest’ in the estate, which may include those who are potential applicants for inheritance, under the Inheritance (Provision for Families and Dependents) Act 1975.

Steps to take before court proceedings are taken

Before court proceedings are considered, steps should be taken to try to resolve the dispute by agreement.  Generally the ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (“The ACTAPS Code”) will be followed. The parties should also follow the Civil Procedure Rules (CPR) Practice Direction for Pre Action Conduct .   The purpose of the ACTAPS Code and practice direction is for the parties to be open and transparent in respect of their respective positions at the outset.  It allows the parties to be fully apprised of one another’s case in order to try and achieve settlement without the need for court proceedings.

The steps under the ACTPAS Code/practice direction are generally:

If matters cannot be resolved in correspondence or at mediation, then  court proceedings may have to be issued for the court to determine the dispute.

Court proceedings

A Claim Form must be completed which will include ‘Particulars of Claim’ outlining the  circumstances which have led to the complaint, and giving details of any testamentary documents, defined by the CPR (rule 57.1) as a Will, a draft of a Will, written instructions for a Will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a Will which is alleged to have been lost or destroyed“.

Once a claim for contentious probate is filed with the court, the Defendant to the matter is required to file an ‘acknowledgement of service’ within 28-days, and any pending requests for grant of probate or letters of administration will be effectively put on hold, until a final decision on the matter is reached.

If the Defendant to a contentious probate claim wishes to defend their case, they must put in writing within 28 days:

Once a Defence has been lodged, the court will make a decision regarding how the case should be handled, through a ‘case management conference’.

Burden of proof

In cases whereby it is argued a Will was not drafted in a valid manner (i.e. in writing and witnessed correctly), or there are doubts as to the testamentary capacity of the Testator, the burden of proof may be placed on the individual/s bringing the claim.  For those with a burden of proof, it will be essential to provide sufficient evidence to the court that due process has (or has not) been followed.  For example, if there is a challenge to a Will based on undue influence, the person making the allegation must provide sufficient details of how the undue influence occurred.

In summary

Challenging a Will or probate can be deeply complex and should only be undertaken when there is a valid case to do so.  Success in these cases depends on the submission of a claim which provides enough evidence to prove either that legal intervention is needed to protect those with a valid interest in the estate of the deceased.  Ultimately, the best starting point is to have a lawful Will which represents the wishes of the Testator faithfully and accurately.  However, should there be reason to dispute the content of a Will or the handling of the probate process, it is essential to seek expert advice from a specialist Solicitor as soon as possible; doing so will ensure you have the best chance of ensuring your interests are considered before it is too late, and the matters relating to the deceased are concluded.

Please note, this article does not constitute legal advice.

Hart Reade Solicitors are a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads.  To make an appointment with one of our Wills and probate Solicitors, please phone our office on 01323 727 321, or alternatively, please complete the contact form below.

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