Probate in a Nutshell
Probate is the legal procedure that attempts to verify a will’s authenticity in court. Should that verification occur then the will is deemed to have been validated and accepted as being the deceased’s last testament. Thereafter the will can be executed in accordance with the wishes of the dear departed.
So What is Contentious Probate?
Contentious probate is when there is a dispute over an estate after the will-maker has passed away. The dispute could arise for a whole swathe of reasons. But possibilities include these:
- A family member may be unhappy with provision made for them if it was not mentioned in the will but was certainly spoken of by the deceased (this touches on what is known as ‘promissory estoppel’)
- A child or adoptive child might actually have an entitlement as a minor, under the Inheritance Act of 1975, But they may not be mentioned or properly provided for in the will (actually lots of relatives might fall into this bracket)
- There could be more than one will
- There may be some query about the validity of a will (e.g. the witnessing of the will-maker’s signature) or allegedly-negligent will-drafting
- There might be grounds for questioning the sanity of the will-maker, or what is called ‘testamentary capacity’, possibly if that’s evidenced by the provision(s) they made in the will (e.g. they might leave millions to their hamster)
- There could be a suspicion of foul-play such as forgery or a claim that the will-writer was under undue influence from others
- Disputes can arise if the personal representation, the executor, might not be acting in a way which is considered by all parties to be correct
- There might be a query over the estate administration if, for instance, a bank has naively disposed of properties at below-market-value because their administration is more irksome than it is to hold cash
- A claim that an asset was actually not entirely the will-maker’s to give away (this is referred to as ‘constructive trust’).
Why Speed is of the Essence if Something Seems Amiss with a Will
After a death, after a funeral, the will is usually read. And this may be the first intimation that something may be wrong. And, of course, thereafter the executors will be entitled to just get on with the job of distributing the assets according to the terms of the will. So speed is of the essence if the will is to be challenged.
How Do You Start to Challenge a Will? Get a Copy. Then Enter a Caveat.
Even if you are going to use a good solicitor like somebody from Goodwills, and contentious probate is a specialist area of the law so it is recommended, you might want to organise yourself quickly so you can speak with a copy of the disputed will in your hand. You can get that copy from the Probate Registry, the General Register Office or the Probate Ministry (the latter will only apply if a ‘Grant of Representation’ has been taken out – a ‘Grant of Representation’ can also be referred to as ‘Letters of Representation’ and even a ‘Grant of Probate’, but essentially it will be issued to somebody who is deemed to be the legitimate administrator). If you’re challenging the will you’re unlikely to be its executor, and if you’re the executor then you’ll probably already have a copy of the will, but we are trying to cover all bases here.
Then you – and really you should use a solicitor for this – need to ‘enter a caveat’ (which amounts to an objection that stalls execution of the will) with the Probate Registry. This action will prevent a ‘Grant of Probate’ being taken out for 6 months. And it can be extended for a further 6 months. So the deceased’s assets will go nowhere (legally at least) until questions are answered about the legitimacy of the will.
What Happens Then?
The executor and the person who has entered a caveat then need to settle their differences. If they can. The caveat can only be removed by a registrar if the dispute is resolved. Otherwise the matter will go to court. Or, alternatively, to mediation. The latter can save a fortune. And has other advantages. A good solicitor will advise on the pros and cons of the options.
Where Can You Find Out More about Contentious Probate?
You can find out more on contentious probate at Goodwills though the National Will Register’s website will tell you a lot at www.nationalwillregister.co.uk/contentiousprobate.aspx. Alternatively you could see the Law on the Web site at www.lawontheweb.co.uk/personal/contested-wills. Though, all in all, you’d surely be better off if you just hire Goodwills.