In recent years, solicitors have seen a significant rise in disputes relating to Wills and probate. The increase in contentious probate is thought to be due in large part to changes in society. Including:
- The increase in property values since 2000 means that more people are leaving behind estates worth sizeable sums. As such, the passing down of large estates is no longer the preserve of successful business people or those with inherited wealth. The increased value of estates means the estates are worth fighting over.
- The prevalence of diseases such as dementia and Alzheimer’s are increasing across society. This is expected to affect over 1 million people by 2025. It is likely more Wills will be challenged on the grounds that the person making the Will (‘the Testator’) lacked capacity (‘capacity’ being a key prerequisite for a valid Will).
- Family structures are more complex. There are more second marriages, step families and cohabitees.
In this article, we will look into the domain of contentious probate. As well as what can be done to resolve matters of this nature.
What is contentious probate?
‘Contentious Probate’ is the term used where:
- the validity of a Will is questioned by an executor or person with an interest in it. (Please see our separate blog Challenging the validity of a Will. Which sets out the grounds on which the validity of a Will can be challenged); or
- There is a dispute over the administration of the estate which leads to a contentious claim. (For example, if there is a dispute with the executors (or between executors) about the management of the estate. Or a dispute with or between the beneficiaries. Even a dispute over the value of the assets or the interpretation of the Will).
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) These 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? This provides further information about these types of claims.
How is a claim for contentious probate handled?
To bring a claim for contentious probate, a person must have ‘sufficient interest’ in the estate. This 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:
- The Claimant sends a formal ‘letter of claim’ to the other parties. Setting out details of the claim and what remedy they are seeking.
- The other party (the ‘Defendant) then has a period of time to send a ‘letter of response’. Setting out their position.
- The parties deal with the disclosure of documents that are relevant to the claim.
- The parties consider if expert evidence is required. I so, whether that expert should be jointly instructed.
- Once the parties know each other’s position, they should consider whether mediation would be appropriate to try to resolve matters.
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.
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:
- Which of the allegations in the Particulars of Claim they deny
- Also the allegations they are unable to admit or deny, but which they require the claimant to prove (where applicable)
- Which of the allegations they admit to
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.
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.