The National Will Register


Contentious Probate

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.

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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.

Find a Contentious Probate Solicitor

Tony Pearce
Editor & Consultant at Richard Nelson LLP & Curtis Whiteford Crocker
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Mark Abrol
Editor and Partner at Meridian Private Client
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Anna Wonnacott
Editor & Contentious Probate Solicitor at GA Solicitors
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Latest Contentious Probate News

Posted 12 December, 2018 12:23:00
The fascinating case of Alexander Wilson: A Contentious Probate perspective
Actress Ruth Wilson is currently appearing on our screens playing her own grandmother, Alison Wilson, telling the story of her life with her husband, Alexander Wilson, and discoveries made about his life after his death. The programme is based on Alison Wilson’s memoirs and is a fascinating story of bigamy, secret lives and multiple families. They...
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Posted 16 October, 2018 16:00:36
Over 65 and living with your partner? What can I do to protect my legal position?
by Samantha Hirst, Contentious Probate Solicitor at Ridley & Hall Solicitors, member of Certainty Contentious Probate Hub and Area

According to the Royal London there are more than 300,000 over-65s in England and Wales who are not married and live together. The number of cohabiting couples aged between 65 and 69 years old trebled...
Read more

Posted 10 September, 2018 14:18:30
What happens if a client dies in the midst of a litigation case?
You are part way through, or possibly near the end, of a difficult contentious case when your client suddenly dies. The client could be the claimant or defendant. What do you do? This can be a problematic circumstance but, luckily, not one we are faced with too often.

The starting point is to identify who can continue the claim on behalf...
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Certainty Contentious Probate Hub and Area from The National Will Register on Vimeo.


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