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What Is Contentious Probate?

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What Is Contentious Probate?

What Is Contentious Probate?

Contentious probate is a term which can encompass a broad range of disputes relating to estates and trusts. Whilst it is always hoped that a probate is administered in line with the terms of the will and no disputes arise amongst beneficiaries during the process, this is not always the case.

How does a probate turn contentious?

A probate can turn contentious when an individual questions or challenges the validity of the will or disputes arise between the trustees, beneficiaries and/or third parties.

Types of claims

The different types of probate claims that can be brought before the court can be found under Part 57 of the CPR and these are set out below:

Probate claims

  • A claim may be brought for the grant of probate of the will, or letters of administration of the estate, of a deceased person.
  • A claim may be brought for the revocation of such a grant.
  • A claim may be brought against the estate disputing the validity of the will on the basis of a number of different grounds, some of which are set out below:
    •  The deceased lacked the mental capacity to understand and enter into the will; or
    • The deceased did not approve the contents of the will and there is evidence to support this; or
    • Challenging how the estate has been divided up by the executor; or
    • A fraud has taken place or the will has been forged; or
    • The formalities required for a will to be valid pursuant to S9 of the Wills Act 1837 were not met.

Claims for rectification of wills

  • A claim can be brought on the basis that the testator’s intention was not properly carried out. The most common form of ground is an error manifested in the will due to either a clerical error or a failure of the legal advisor to properly understand their client’s intentions when drafting the will – this would consequently lead to a professional negligence claim brought against the legal advisor.

Trust disputes

  • Disputes may arise between the trustees and the beneficiaries and the beneficiaries may seek to take action to remove and/or replace trustees.

Inheritance claims

  • Claims under the Inheritance Act 1975 is also covered under Part 57 and is another form of turning probate into a contentious matter. An individual may bring a claim against the estate should they feel the deceased has not made any reasonable financial provision for them.

The process

  1. In order to bring a probate claim, you must fist file a Caveat (also known as ‘enter a Caveat’), which for a period of 6 months (plus any extensions) places on hold and prevents the completion of a probate application.
  2. Once the probate application has successfully been put on hold, you must then comply with the Pre-Action Protocol which requires a Letter before Claim to be issued to the executors explaining your intention to file proceedings due to a dispute as to the validity of the will.
  3. If the issue remains unsettled, you will then need to issue a Claim Form and Particulars of Claim and the executors, as Defendants, will be given 28 days to file a Defence Following Case Management Conference, the dispute would be presented before the Court.
What we do

Our Contentious Probate team can assist with all manner of contentious probate disputes, whether that relates to challenges to the validity of Wills, claims brought under the Inheritance (Provision for Family and Dependents) Act 1975, protecting your interest in an estate or otherwise.

We have a team of highly experienced litigators who understand that disputes of this nature can be distressing to those  involved and that proactive and pragmatic advice, paired with sensitivity and discretion, is required.

We strive to resolve disputes quickly and cost effectively. However, where court proceedings are necessary, we provide comprehensive and skilled advice.

Our Contentious Probate Team is part of EMW Wealth. Take a look at the EMW Wealth Brochure here

Get in Touch

If you, a loved one or a close contact require advice in relation to any contentious probate matters, please get in contact with Karen Young.

The information contained in this leaflet is or general information purposes only and is not legal advice, which will depend on your specific circumstances. © 2021 EMW Law LLP