We all need to make a Will before we pass away. That way, we can ensure our wishes are carried out, and that the right people receive the right assets. However, there are some instances where friends or family members may wish to challenge the Will.
What is Contentious Probate?
In summary ‘contentious probate’ is where a party either seeks to challenge or defend the provisions of an individual’s last will and testament (Will).
An individual can either make a Will, in which case his or her assets will pass in accordance with the Will, or an individual can leave no Will in which case his or her assets on death will pass in accordance with the Intestacy Rules. An individual can seek to challenge the distribution of the deceased’s assets either under the Will or the Intestacy Rules.
When is a Will Invalid?
When it comes to what is contentious probate, a Will can be found to be invalid (i.e. its provisions can be ignored) in certain circumstances, as follows: –
- The testator did not comply with the requirements of the Wills Act in signing his Will and having his/her signature properly witnessed.
- The testator lacked the sufficient mental capacity required to validly make a Will.
- The testator did not understand that he/she was making a Will and therefore lacked the relevant knowledge or approval required.
- The testator was unduly influenced in making the Will i.e. he was coerced against his/her wishes to make the provisions in the Will.
Such actions to challenge a Will are referred to as ‘contentious probate’ actions. What is contentious probate going to affect in terms of the Will? Well, this completely depends on the circumstances.
Another way in which the provisions of the testator’s Will or the distributions under the Intestacy Rules can be amended is if an individual seeks to bring a claim under the Inheritance (Provision for Family Dependants) Act 1975. This entails an applicant stating that they have not been left reasonable provision either under the Intestacy Rules or under the testator’s Will.
Dealing with contentious probate issues is incredibly stressful for all the parties involved. Bringing or defending such claims often follows quickly after the loss of a loved one when emotions are understandably running high. It is important for advisors to deal with such matters as quickly and as empathetically as possible. Court proceedings should be a last resort due to the unnecessary stress and costs of litigation. Advisors should seek to take the emotion out of such matters focusing rather on identifying the issues in dispute and seeking practical solutions as soon as possible. Mediations, where the parties meet to try to reach a settlement, are particularly effective in such cases.
If the issues are identified clearly and concisely at an early stage then a practical solution should be able to be found relatively quickly and without the need for Court proceedings.