The National Will Register

 

Contentious Probate

Contributing Editor - Mark Abrol, Managing Partner, The Wilkes Partnership

What is contentious probate?

Disputes arising out of someone’s estate after they have passed away.


When should you consider contentious probate action?

No two scenarios are ever the same and so it be may be appropriate to consider contentious probate action in various different circumstances. Some common scenarios are set out below:-

  • Someone has passed away leaving a Will that is suspicious due to its content, timing and/or choice of executor;
  • Someone’s estate has been depleted before they passed away by someone other than the deceased meaning the estate is less valuable than expected;
  • You were expecting to inherit on the deceased’s death but have not been included as a beneficiary in their Will or only to a lesser extent than you anticipated;
  • You were promised some inheritance but the deceased passed away leaving a testamentary document that does not benefit you;
  • You were in receipt of financial support from the deceased before their death but do not benefit on their death;
  • You are named as the executor of a Will but there is a dispute with your co-executor or the beneficiaries; and
  • There is a dispute as to the occupation or sale of the deceased’s property.

These are just a few common scenarios that contentious probate lawyers will deal with on a daily basis. They are though by no means a comprehensive and exhaustive list as disputes relating to a deceased’s estate can take many forms.


The do’s and don’t’s

Contentious probate is a specialist area of law. Whilst contentious probate can result in High Court litigation, there are specific rules that govern contentious probate before and after the issuing of proceedings. Accordingly, someone that finds themselves in need of a contentious probate lawyer should instruct a specialist and not just either a commercial litigator or a private client solicitor. Instructing a solicitor who is not a contentious probate specialist could be extremely detrimental to the progress of a claim.

If someone finds themselves defending a claim against an estate, they should obtain specialist, independent legal advice as a matter of urgency and not try and deal with it themselves. It could be a false economy if they try and deal with it themselves because they will save costs initially but then may face a higher legal bill later on when they do instruct a solicitor and the solicitor has to unpick the action taken by the client. Further, any action that they take without reference to a solicitor could be extremely damaging and could leave themselves open to criticism. For example, an executor who distributes an estate despite being on notice of a claim being advanced against it.

A lot of individuals try to resolve disputes themselves in the first instance. The benefits are obvious in that all parties save legal fees and individuals are able to retain relationships that can become irreparable once solicitors become involved. It can mean though that individuals resolve disputes without receiving legal advice about their position and the options available to them. That could mean though that claims are resolved differently or for a lower amount than a claimant would have received had solicitors been involved.

If individuals do try and deal with claims themselves, they should retain documentation and correspondence exchanged with the other parties so that any future solicitor can see what has been done/said and when.


Is a contentious probate solicitor different to a normal probate solicitor?

Yes. A normal probate solicitor deals with the administration of someone’s estate after they pass away so collect in all of the assets/liabilities and distribute the estate to the beneficiaries named in the Will/under the Intestacy Rules. They only act where there is no dispute between the executors/beneficiaries or any third party. Contentious probate solicitors are the opposite. They only act when there is a dispute between the executors/beneficiaries or any third party.


The interaction between Certainty, the Will Register, and Contentious Probate

Clients often say to us that they thought their loved one had a Will but they cannot find it, that someone is distributing an estate according to a Will that they are sure was revoked by a later Will or that someone is refusing to provide information about a Will. A search of the Will Register can sometimes solve these issues by locating the Will in question and details of the solicitor’s firm that acted in its preparation. In can also be extremely useful to confirm that the deceased did indeed pass away intestate. We have had situations acting for cohabitees of a deceased person where we have been looking to advance claims pursuant to the Inheritance (Provision for Family and Dependents) Act 1975, proprietary estoppel and constructive trust because the deceased was presumed to pass away intestate so our client was not a beneficiary. We have been able to do a Certainty search and find out that there was, in fact, a Will benefitting our client. The intestacy beneficiaries had not done such a search because it was not in their best interests to uncover a Will. Finding the Will through Certainty saved our client the uncertainty, let alone costs, of a dispute.

 

Latest Contentious Probate News

Posted 26/10/2017
Contentious Probate at The Wilkes Partnership
At The Wilkes Partnership, our Contentious Probate department also specialists in disputes relating to Court of Protection issues and in professional negligence claims.

In relation to the Court of Protection, we advise on disputes between attorneys, between donor and attorney and between other interested parties. Such disputes can relate to the donor’s capacity, well-being or suspected financial abuse.

We also act for claimants against professional advisers such as other solicitors, accountants, tax and other financial advisers particularly in the context of a deceased’s estate. Some recent examples include acting for a disappointed beneficiary who did not receive an inheritance due to a solicitor’s failure to sever a joint tenancy and acting for an executor of an estate facing a significant inheritance tax bill due to incorrect tax advice given to the testator by an accountant.
 

 

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