Intestacy: how we achieved an inheritance settlement for a stepchild where there was no will
We recently represented a child whose non-biological father had died without having made a will.Read more
Contentious probate solicitors
Our specialist contentious probate lawyers can help you with contesting a will, Inheritance Act claims, and probate and trust disputes.
Whether you are a trustee, an executor or a beneficiary, we will carefully guide you through the entire estate dispute process. We tailor our approach for every claim or potential claim, based on its specific and unique circumstances and will provide a balance of understanding and practical advice to ensure matters are dealt with as smoothly as possible to reach the best resolution.
Appreciating that taking a claim to court can be costly, we focus on resolving matters without the need for court intervention where possible, using alternative dispute resolution methods to bring estate dispute claims to a successful conclusion whilst minimising costs, risk and stress.
However, if court intervention is necessary, you can rest assured that we have some of the best litigation lawyers in the country.
Contentious probate solicitors
Our team of experts are highly experienced and regularly deal with all types of will and estate disputes arising from a variety of situations.
We frequently advise on cases such as dealing with invalid wills, issues arising from negligent will drafting, undue influence, losses arising from probate fraud or forgery, issues relating to lack of mental capacity and problems arising from executors failing to carry out their duties properly or effectively.
We also have considerable experience in dealing with large and complex estates, particularly where rural and agricultural property is involved or assets are held in different countries.
Contentious probate solicitors
Contentious probate is a dispute involving inheritance or the validity of a will, usually over a disagreement after someone has passed away relating to the distribution of their estate.
Contentious probate disputes may arise in a variety of situations where there are:
No, you do not necessarily need to issue court proceedings to contest a will or make a claim against an estate.
The costs involved in taking a contentious probate claim to court can be high but we regularly use alternative dispute resolution as a means of bringing claims to a successful resolution whilst minimising costs and risk. Alternative dispute resolution can be a less stressful and emotional way of settling claims. Of course, however, we can take a dispute to court if that is a necessary and appropriate way of bringing a claim to a conclusion.
It is vitally important to act quickly if you believe there may be grounds for contesting a will.
Time limits can vary depending on the type of claim, however, below provides a general guide:
In cases where there may be grounds to contest a will, the person challenging the will can enter a caveat to prevent the grant of probate being issued. You can still contest a will after probate has been issued, however, it is generally easier to recover estate assets if they have not yet been disposed of.
You should speak to a legal expert as soon as possible for advice.
You may be able to argue that a will is invalid if you can show that one or more of the following apply:
You will need sufficient interest in order to bring a claim. If you think a will is invalid, you should speak to a solicitor as soon as possible for advice.
For a will to be validly executed, it must comply with section 9 of The Wills Act 1837. There are four elements to show:
When making a will, the testator must be of ‘sound mind’. There is a legal presumption that an individual has capacity unless it is established that they do not have so. The person making the will must:
If you believe that the deceased lacked capacity when they made their will, you should contact the legal representative who acted for the testator at the time to ask for evidence to show that the testator did have the mental capacity when the will was made.
If you believe a testator was placed under undue influence or coerced when they made their will, you may be able to contest the will. Undue influence is when pressure is placed on the testator by a third party i.e. to make certain gifts etc.
This is an extremely difficult claim to prove, as the deceased is unable to assist the court. There are no legal presumptions, and it is on the person claiming to provide substantial evidence for the claim.
The court must be satisfied that the testator understood and approved the contents of the will.
Where a will has been executed correctly and the testator had the necessary testamentary capacity, then knowledge and approval are usually presumed.
Relevant questions that the court would consider are whether:
Certain circumstances where it must be proved that the testator had necessary knowledge to understand the content of their will and that they approved the content:
The will is alleged to have been signed by another person for the deceased at his discretion.
If it can be proved that the will has been forged or fraud was involved, then it will be set aside by the court and held to be invalid.
Fraud is defined as a criminal act being “an intentional deception made for personal gain or to damage another individual”.
Common forms of fraud
There is a high degree of proof required to prove allegations of fraud or forgery.
You may have a claim for proprietary estoppel. Proprietary estoppel is a legal remedy to enforce a broken promise. The following factors must be established to bring such a claim:
There was a promise, representation or assurance made by the deceased that a person would acquire a right or interest in specified property.
When such a promise has been made, it was relied upon with the belief that it was effective.
There needs to have been some detriment suffered by relying on that promise. It must be shown that there is a link between reliance on the promise and the detriment suffered.
Encouragement by the person making the promise.
If the factors are demonstrated and that it would be unconscionable for no remedy to be given all, the court will consider what remedy to provide. This will be ultimately dependant on the facts of each case , but the powers of the court are wide ranging in this area.
Example case: In Habberfield -v- Habberfield, the daughter of Mr Habberfield, made a claim for proprietary estoppel. She had worked in the family farming business and claimed that her father had made various assurances and promises to her during his lifetime relating to ownership of the farm. She brought a claim that she had acted to her detriment by working at the farm throughout her lifetime for little financial remuneration. The court agreed and made a monetary award to her.
The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) enables certain categories of people to seek reasonable financial provision from an estate. They will need to be able to demonstrate that they were financially dependent on the deceased and that there was a failure to make adequate financial provision for them.
The Act stipulates that the following categories of application can bring a claim:
The Act requires the court to consider whether reasonable financial provision has been made for the applicant and if not, what provision should be made. The following factors are considered:
Any order made by the court will take into account any other applicants, other beneficiaries and the size of the estate, to ensure that the order of financial provision does not cause significant detriment to another party.
It is a common misconception that the costs of all parties to trust or estate litigation come out of the trust fund or the estate. They do not.
The main principles relating to costs are as follows:
Exceptions to the rule – where the deceased has in effect caused the litigation e.g. failed to give consideration to all claims against the estate.
Beneficiaries are those who benefit from an inheritance (money or assets) under the will.
Estate is the general term to describe all that the deceased owned, which might include cash in the bank, shares, stock, assets, and property etc.
Executors are those appointed in the will to carry out the instructions in the will and ensure the beneficiaries receive their inheritance.
Grant of probate is the certificate provided by the Probate Registry confirming that the executors named in the will have the authority to deal with the estate of the deceased.
A testator is the person who has made the Will.
“The firm was very professional and supportive in a very sensitive issue. They gave realistic advice on what could be achieved. All the team have been very friendly and helpful whether it be face to face, by telephone or by email usually responding very quickly.”
“Flint Bishop routinely acts on tax planning for high-net-worth individuals, and it also covers wills, estate administration, probate, trusts, Court of Protection and elderly client matters. Led by Claire Rudkin, the practice is increasingly active in cross-border matters and represents business owners, entrepreneurs and farmers, among others.”
“Flint Bishop was recommended to me to assist me in dealing with a contentious will issue. I found the firm to be very helpful, experienced and at the top of their respective professional disciplines. I could not have achieved the final outcome without them going that extra mile to deliver a satisfactory outcome. I have been very satisfied and would not hesitate to recommend the firm in the future.”
For more information and advice on contentious probate, please contact us on 01332 226 480 or complete the form below.
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