Seven things you need to know about contested probate

What is contested probate? This is where a deceased’s will is challenged by their spouse, children or other dependents. This can happen for a number of reasons, but most commonly when someone feels they have been treated unfairly. We frequently receive enquiries from disappointed people who think they should have been left something (or more), in a will.

When this happens, a claim can potentially be brought under the Inheritance Act, as long as the person fulfills certain criteria.

Here are seven important things you should know if you’re considering a contested probate claim:

  1. There are time limits. A claim under the Inheritance Act must be made within six months of the date of the grant of probate/letters of administration.
  2. Only certain people can claim. The categories of claimant are: spouse/civil partner of the deceased; a person living with the deceased ‘as husband or wife’ for at least two years prior to their death; a child of the deceased — or someone treated as a ‘child of the family’ — such as a foster- or step-child; or a person who was maintained by the deceased.
  3. There are different types of award. The court can make a range of different orders, such as a lump sum to the successful claimant, periodical payments from the estate, or the transfer of property from the estate.
  4. There needs to be proof. In most cases, for a case to be successful, the applicant will need to prove they have a financial need, or were financially dependent on the deceased. Spouses or civil partners however don’t have to show need or dependency to make a successful claim.
  5. How does the court decide? There is a range of factors including: the size of the estate; the financial status of the competing beneficiaries; the health of any claimants; and any obligations the deceased had towards the claimants. The court’s test is objective though and aims to achieve a fair result — which might not necessarily be in line with the testator’s wishes.
  6. What about legal fees? The usual costs rules apply if a case reaches trial, with the loser paying the winner’s costs. If a case settles before trial, the parties can come to an agreement in terms of costs, such as each paying their own, or taking them from the estate.
  7. Is there a better way than going to court? Both courts and lawyers are strong supporters of mediation or other forms of dispute resolution in these types of cases. Mediation is flexible, cost effective and quicker than litigation. It works well in this type of case where it is in everyone’s best interests to keep costs down and maximise the amount left in the estate; and of course to resolve the case quickly.

 

If you would like more information on contested probate, mediation, or any other type of dispute resolution, contact our specialist team now by email at [email protected] or call 033 344 9600.

Author: Julia Fenton, Associate Solicitor, Dispute Resolution & Personal Injury