The unfortunate passing of a loved one can cause a wide range of difficulties for families, and the last thing you want to deal with in a time of mourning and bereavement is dissatisfaction with the way in which the deceased individual’s estate has been dealt with.
In the event of such dissatisfaction, you may go down the route of Contentious Probate to rectify the issue.
To help you understand contentious and Non-Contentious Probate Rules, we’ve put together this article containing everything you need to know to guide you through the best possible route.
What is Contentious Probate?
A Contentious Probate refers to disputes associated with how a deceased individual’s estate is dealt with and administered after their passing.
When a deceased family member’s Will is disputed as a result of individuals named in the Will receiving either less than expected from their rightful inheritance, or nothing at all, a claim can be opened.
A claim can also arise if the deceased individual did not make a Will before their passing. In this case, their inheritance will be distributed according to the Rules of Intestacy.
Contentious Probate claims can arise here if the Rules of Intestacy exclude any individual(s) who expected to inherit, or feel as though they were ought to inherit, from the deceased’s estate.
A claim can be categorised into two ways:
A claim against the validity of the Will
A claim that the Will does not make sufficient provision for the claimant
What is Non-Contentious Probate?
In November 2020, the HM Courts & Tribunal Service (HMCTS) declared a new set of rules, outlined in the Non-Contentious Probate (Amendment) Rules 2020, that allows individuals to directly make applications themselves, or for solicitors to make applications on behalf of individuals.
This differs drastically from the original set of rules outlined in The Non-Contentious Probate Rules 1987, where applications by solicitors could be made using traditional paper-based systems.
Non-Contentious Probate Rules have had to change as the result of increasing digitalisation, and so an online system has been developed for ease of use and accessibility. Additionally, the new Non-Contentious Probate Rules exist to make the process more efficient.
Why do disputes arise?
There are many circumstances that can cause disputes to arise, with some of the most common being:
The Will does not comply with prevailing probate rules
There is suspicion that fraud was committed when the Will was made
The inheritance has not been paid to beneficiaries
A financially dependent individual of the deceased has not been sufficiently provided for in the Will
Unjust pressure was placed on the deceased at the time of making the Will by a serial beneficiary
A beneficiary of a Trust has not received any of their entitlement under the Trust, or the amount received is insufficient
Children of the deceased have minimal income or savings, but are faced with a high, unavoidable expenditure
The deceased as not mentally capable of making a Will
The Will has gone missing or has been damaged beyond repair
The deceased did not make a Will before they died
If you find yourself in any of these situations, you may be eligible to seek the help of a Contentious Probate solicitor, who can discuss the merits of your case, and whether you qualify for a claim.
How to contest a Will
There are three core steps to take when contesting a Will:
As with any claims, there is a certain time limit for when you can act. If you are looking to pursue a claim under the Inheritance (Provision for Family & Dependants) Act 1975, you must begin your claim within six months of the date of the grant of probate, or when the letters of administration were issued. In respect of other Contentious Probate claims, the Courts will expect you to act without unnecessary delay and ideally, before the estate has been distributed or probate granted, however this is not always a bar to pursuing a claim.
Lodge a caveat
Once a solicitor has approved your claim, you can then submit a formal claim through the form of a Caveat to the Probate Registry Office. By doing so, the deceased’s estate cannot be distributed without informing the Caveator and resolving the dispute.
Pursue court action
It is always preferable to reach a conclusion without having to take the matter to Court, by having formal conversation with each party, guided by legal support. In the event that an outcome cannot be reached during the caveat stage, then a formal Court claim may be submitted.
Additionally, if you are an immediate family relation or beneficiary and are facing the claims made against the Will, you must also seek legal guidance as soon as possible.
In some rare circumstances, if a Will is taken to Court, the Court may choose to discredit part of the Will, or the entirety of the Will. With so much on the line, seeking legal support can remove the emotions and pressure involved from your side, allowing the matter to be dealt with smoothly.
Probate disputes and how solicitors can help
If you feel a loved one’s estate is not being dealt with correctly, you shouldn’t have to deal with this alone, especially during such a difficult time. Solicitors can help to navigate the process, ensuring the desired outcome is achieved.
Contact the team at Smith Partnership today and our friendly team will be more than happy to assist you with your claim. We understand the difficulty and severity of each individual’s situation, and so we will always approach each case with the utmost respect, care, and due diligence.