Contested Probate

What is Probate?

Before delving into the specifics of contested probate, it is essential to understand the probate process itself. Probate is the legal process by which a deceased person’s will is validated, and their estate is administered. This process involves:

1. Validating the Will: Ensuring the will is legally sound and was created with the appropriate formalities.
2. Appointing Executors: The executors named in the will are officially appointed to manage the estate.
3. Settling Debts and Taxes: The executors are responsible for paying any outstanding debts and taxes from the estate.
4. Distributing Assets: After debts and taxes are settled, the remaining assets are distributed according to the will.

In cases where there is no will, the estate is distributed according to the rules of intestacy.

Common Grounds for Contested Probate

Contested probate can arise for several reasons, each presenting its own set of challenges. Here are the most common grounds for contesting probate:

1. Lack of Testamentary Capacity: One of the most frequently cited reasons for contesting a will is the claim that the deceased lacked the mental capacity to create a valid will. To have testamentary capacity, the testator must understand the nature and extent of their estate, the consequences of making a will, and the claims of those who might expect to benefit from the will.
2. Undue Influence: A will can be contested if it is believed that the testator was coerced or unduly influenced by another person when making the will. This can occur in situations where the testator is vulnerable, dependent on the influencer, or isolated from other potential beneficiaries.
3. Improper Execution: For a will to be valid, it must comply with specific legal formalities. This includes being in writing, signed by the testator, and witnessed by two individuals who are not beneficiaries. Any deviation from these requirements can render the will invalid.
4. Fraud or Forgery: If there are allegations that the will was fraudulently created or forged, it can be contested. This includes situations where the testator’s signature was forged or where the testator was deceived into signing a will under false pretences.
5. Rectification and Construction Claims: These claims arise when there is ambiguity in the will’s language or if the will does not reflect the testator’s true intentions due to a clerical error or other mistake.
6. Revocation: A will can be contested on the grounds that it was revoked by the testator. Revocation can occur through the creation of a new will, the destruction of the original will, or a formal declaration of revocation.

The Process of Contesting Probate

Contesting probate is a multifaceted process that involves several stages.

At DLS Solicitors, we guide our clients through each step, ensuring they understand their rights and options.

1. Initial Consultation: During the initial consultation, we discuss the specifics of your case, including the grounds for contesting the will and any supporting evidence you may have. We also outline the legal process and potential outcomes.
2. Pre-Action Protocol: Before initiating formal legal proceedings, it is often beneficial to attempt resolution through the pre-action protocol. This involves exchanging letters between the disputing parties to clarify the issues and explore potential settlements.
3. Filing a Caveat: If there is a risk that probate may be granted before the dispute is resolved, we can file a caveat with the Probate Registry. This prevents the grant of probate until the dispute is settled or the caveat is removed.
4. Mediation and Negotiation: Many contested probate cases are resolved through mediation or negotiation, avoiding the need for court intervention. Mediation involves a neutral third party who facilitates discussions between the parties to reach a mutually acceptable resolution.
5. Court Proceedings: If mediation is unsuccessful, the case may proceed to court. This involves filing a claim with the appropriate court, gathering evidence, and presenting your case before a judge. The court will then make a determination based on the evidence and legal arguments presented.
6. Appeals: If either party is dissatisfied with the court’s decision, they may have the option to appeal. This involves taking the case to a higher court for review.

Evidence in Contested Probate

The success of a contested probate claim often hinges on the quality and quantity of evidence presented.

At DLS Solicitors, we work diligently to gather and present compelling evidence to support our clients’ claims. Key types of evidence include:

1. Medical Records: These can provide crucial information regarding the testator’s mental capacity at the time the will was created. Expert medical testimony may also be required to interpret these records.
2. Witness Statements: Statements from individuals who were present when the will was executed or who had regular contact with the testator can provide valuable insights into the testator’s state of mind and any potential undue influence.
3. Financial Records: These can help establish the extent of the testator’s estate and identify any unusual transactions that may indicate fraud or undue influence.
4. Previous Wills: Comparing the contested will with previous versions can highlight significant changes and raise questions about the testator’s intentions.
5. Expert Testimony: In some cases, expert testimony from handwriting analysts, forensic accountants, or other specialists may be necessary to support your claim.

Potential Outcomes of Contested Probate

The outcome of a contested probate case can vary widely, depending on the specifics of the case and the strength of the evidence presented. Possible outcomes include:

1. Upholding the Will: The court may determine that the will is valid and should be upheld. This means that the estate will be administered according to the terms of the contested will.
2. Revoking the Will: If the court finds that the will is invalid, it may be revoked. In such cases, the estate may be distributed according to a previous valid will or, in the absence of another will, according to the rules of intestacy.
3. Partial Invalidity: In some cases, the court may find that only certain parts of the will are invalid. The valid portions of the will may still be enforced, with the invalid parts being disregarded.
4. Rectification: If the will contains errors or ambiguities, the court may order rectification to correct these issues and ensure the will accurately reflects the testator’s intentions.
5. Settlement: Many contested probate cases are resolved through settlement, either before or during court proceedings. Settlements can involve compromises that address the interests of all parties involved.

Costs of Contested Probate

Contesting probate can be a costly endeavour, both financially and emotionally. Considering the potential costs and weighing them against the likely benefits is important. Costs can include legal fees, court fees, expert witness fees, and other expenses associated with gathering evidence and presenting your case.

At DLS Solicitors, we strive to provide transparent and flexible fee structures to accommodate our clients’ needs. We also explore alternative funding options, such as “no win, no fee” agreements and litigation funding, where appropriate.

Preventing Contested Probate

While it is impossible to eliminate the risk of contested probate entirely, there are steps that can be taken to minimise the likelihood of disputes:

1. Clear and Detailed Will: Ensuring that your will is clear, detailed, and free of ambiguities can reduce the potential for misunderstandings and disputes.
2. Professional Advice: Seeking professional advice when drafting your will can help ensure that it complies with legal requirements and accurately reflects your wishes.
3. Regular Updates: Regularly updating your will to reflect changes in your circumstances and intentions can help prevent disputes arising from outdated provisions.
4. Communication: Communicating your intentions to your beneficiaries and family members can help manage expectations and reduce the likelihood of disputes.
5. Inclusion of a No-Contest Clause: Including a no-contest clause in your will can deter beneficiaries from contesting the will by threatening to disinherit anyone who challenges it. However, the enforceability of such clauses can vary, so professional advice is recommended.

Conclusion

Contested probate is a complicated and emotionally charged area of law that requires careful navigation and expert guidance.

At DLS Solicitors, we are committed to providing our clients with the support and representation they need to resolve probate disputes effectively and fairly. Whether you are contesting a will or defending against a contest, our experienced team is here to assist you every step of the way.

By understanding the grounds for contesting probate, the legal process involved, and the potential outcomes, you can make informed decisions about how best to proceed. Our goal is to ensure that the wishes of the deceased are respected and that justice is served, providing peace of mind for all parties involved.

If you have any questions or need assistance with a contested probate matter, please do not hesitate to contact us. We are here to provide the expert guidance and support you need during this challenging time.