Contentious Probate - What is it?
  • Helen Claydon

Contentious Probate - What is it?

When someone decides that they want to contest a Will, it can create tension within the family and a challenging situation for everyone involved. After a person has passed away, their estate is distributed in accordance with their Will but sometimes it is not as clear cut as that and there might be someone who doesn’t agree with that distribution.

There are many reasons why someone might contest a Will and claim it is invalid. One ground that is considered by the courts is whether the individual had the mental capacity to understand their decisions when the Will was signed. When someone makes a Will and signs it they have to be of sound mind, memory and understanding. Sometimes the early diagnosis of a condition like dementia can be a factor when it comes to deciding whether the deceased has the ability to understand their decision, however, it is not the only factor. It is important that the individual assessed before making the Will to ensure that they are of sound mind. If these checks are not carried out it could leave a Will open to challenge. A Will could be overturned if it is felt that the individual was forced, pressured or coerced into writing their Will.

What happens if an individual feels as though they have not been given what they were expecting?

This could lead to a claim under the Inheritance (Provision for Family and Dependents) Act 1975. This makes it possible for family members and close friends to apply to the courts for reasonable financial provision from the estate, especially where the Will does not contain adequate provision. In this instance, the Will remains in place (there is no question about it’s validity) but the law will protect certain individuals who fall into defined categories of people entitled to bring a claim. The outcome of any claim will be based on the individual facts of each case.

What happens if the deceased promised to give someone property but it is not included in the Will?

There are instances that can occur where an individual relied on the deceased’s promise that they will receive property when they pass away. As a result, they acted on the expectation that they will inherit part of the estate, normally to their detriment. In these instances, the courts have the ability to enforce the promise and order that the property is transferred from the estate and to the individual, even if it is not included in the Will. An example is where a family member agrees to work on the family farm for a low salary on the understanding that they will inherit the farm one day. There have been several cases where this has happened and the courts have awarded those individuals who were promised property or inheritance.

The most important thing is getting your Will in place and ensuring that your Will is kept up-to-date and relevant, especially if you have made genuine promises to people. Whatever your circumstances, having a Will in place makes the entire process more efficient and as simple as possible.


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