Probate Claim

Probate Claim
Probate Claim
Full Overview Of Probate Claim

Probate claims are a crucial aspect of estate administration, often involving legal disputes over the distribution of a deceased person’s estate.

At DLS Solicitors, we understand the complexities and sensitivities surrounding probate claims. This guide provides a clear, professional, and informative overview of probate claims, addressing their nature, common types, legal grounds, procedures, and practical considerations.

Our objective is to equip you with the knowledge necessary to navigate probate claims effectively, whether you are an executor, beneficiary, or potential claimant.

Understanding Probate Claims

Definition and Scope

A probate claim is a legal challenge or dispute related to the administration of a deceased person’s estate. These claims can arise for various reasons, including disputes over the validity of a will, the interpretation of will terms, the conduct of executors, or the rights of beneficiaries.

Probate claims are resolved through the courts, and they can significantly impact the administration and distribution of the estate.

Common Types of Probate Claims

  1. Contesting the Validity of a Will: Challenges to the validity of a will based on allegations of undue influence, lack of testamentary capacity, or failure to comply with legal formalities.
  2. Inheritance (Provision for Family and Dependants) Act 1975 Claims: Claims for reasonable financial provision from the estate by individuals who believe they have not been adequately provided for under the will or intestacy rules.
  3. Executor or Trustee Disputes: Disputes regarding the conduct or decisions of executors or trustees, including allegations of mismanagement or breach of fiduciary duty.
  4. Interpretation of Will Terms: Disputes over the meaning or interpretation of specific terms or clauses within a will.
  5. Intestacy Disputes: Claims arising when a person dies without a will, leading to disputes over the application of intestacy rules and the distribution of the estate.

Grounds for Probate Claims

Lack of Testamentary Capacity

One of the most common grounds for challenging the validity of a will is the allegation that the testator lacked testamentary capacity. This means that the testator did not have the mental capacity to understand the nature and effect of making a will, the extent of their estate, or the claims of those who might expect to benefit from the will.

Legal Criteria for Testamentary Capacity

The legal criteria for testamentary capacity were established in the case of Banks v Goodfellow (1870), which requires that the testator:

  1. Understands the nature and effect of making a will.
  2. Knows the extent of the property they are disposing of.
  3. Is aware of the persons who might reasonably be expected to benefit from the estate.
  4. Is not affected by any mental disorder that influences their decisions.

Undue Influence

Another common ground for contesting a will is undue influence. This occurs when the testator is coerced or pressured into making a will or including specific terms in the will that do not reflect their true intentions.

Proving Undue Influence

Proving undue influence can be challenging, as it requires evidence that the testator was subjected to pressure or manipulation that overpowered their free will. This often involves:

  1. Demonstrating the existence of a relationship of trust and confidence between the testator and the influencer.
  2. Providing evidence of actions or behaviours by the influencer that indicate coercion or manipulation.
  3. Showing that the will or specific terms in the will are inconsistent with the testator’s previous intentions or relationships.

Failure to Comply with Legal Formalities

Wills must comply with certain legal formalities to be valid. Failure to adhere to these requirements can form the basis for a probate claim challenging the validity of the will.

Legal Formalities for a Valid Will

The Wills Act 1837 sets out the formalities required for a valid will, including:

  1. The will must be in writing.
  2. The will must be signed by the testator or by someone else in their presence and at their direction.
  3. The testator’s signature must be made or acknowledged in the presence of two witnesses, who must also sign the will in the testator’s presence.

Fraud or Forgery

Allegations of fraud or forgery can also form the basis of a probate claim. This occurs when the will is alleged to have been created or altered fraudulently, or when the testator’s signature is forged.

Evidence of Fraud or Forgery

Proving fraud or forgery typically requires forensic evidence, such as handwriting analysis, and testimony from individuals who can attest to the circumstances under which the will was created or altered.

Inheritance (Provision for Family and Dependants) Act 1975 Claims

Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals can make a claim for reasonable financial provision from the estate if they believe they have not been adequately provided for under the will or intestacy rules.

Eligible Claimants

Eligible claimants under the Act include:

  1. The spouse or civil partner of the deceased.
  2. A former spouse or civil partner who has not remarried or entered into a new civil partnership.
  3. A person who was cohabiting with the deceased as if they were a spouse or civil partner for at least two years prior to the death.
  4. A child of the deceased.
  5. A person treated as a child of the family by the deceased.
  6. Any other person who was being maintained by the deceased immediately before their death.

Grounds for a Claim

To succeed in a claim under the Act, the claimant must demonstrate that the will or intestacy rules have not made reasonable financial provision for them, considering their needs and the resources of the estate.

The Probate Claim Process

Initial Steps

  1. Obtaining Legal Advice: The first step in making a probate claim is to seek legal advice from a solicitor experienced in probate and estate disputes. A solicitor can assess the claim’s merits, explain the legal process, and help gather evidence.
  2. Pre-Action Protocol: It is generally advisable to follow a pre-action protocol before issuing court proceedings. This involves writing to the other parties involved, setting out the basis of the claim, and attempting to resolve the dispute through negotiation or mediation.

Issuing Court Proceedings

If the dispute cannot be resolved through pre-action negotiations, the next step is to issue court proceedings. This involves:

  1. Filing a Claim Form: The claimant must file a claim form with the appropriate court, stating the claim’s details and the relief sought.
  2. Serving the Claim Form: The claim form must be served on the defendants with a specified period to file a response.

Case Management

Once the claim form and responses have been filed, the court will manage the case, which may involve:

  1. Case Management Conference: A meeting between the parties and the judge to discuss the issues in dispute, the evidence required, and the timetable for the case.
  2. Disclosure: The process of exchanging relevant documents and evidence between the parties.
  3. Witness Statements: Preparing and exchanging written statements from witnesses who will give evidence at the trial.
  4. Expert Evidence: The use of expert witnesses to provide specialist opinions on issues such as handwriting analysis, medical capacity, or asset valuation.


If the case proceeds to trial, the judge will hear the evidence from both sides and make a determination based on the facts and applicable law. The trial may involve:

  1. Opening Statements: Each party presents an overview of their case and the key issues.
  2. Examination of Witnesses: Witnesses give evidence and are cross-examined by the opposing party.
  3. Closing Statements: Each party summarizes their case and the evidence presented.
  4. Judgment: The judge delivers a judgment, stating their findings and the legal reasoning behind their decision.


Following the trial, there may be additional steps, including:

  1. Appeals: Either party may appeal the judgment if they believe there has been a legal error.
  2. Enforcement: If the judgment includes financial awards or specific orders, steps may be taken to enforce compliance.

Practical Considerations for Executors, Beneficiaries, and Claimants


  1. Act Impartially: Executors have a fiduciary duty to act impartially and in the best interests of all beneficiaries. They must manage the estate diligently and transparently.
  2. Seek Legal Advice: Executors should seek legal advice if they face a probate claim or anticipate potential disputes. A solicitor can provide guidance on their duties and how to navigate the legal process.
  3. Maintain Records: Keeping detailed records of all actions, decisions, and communications related to the estate can help protect against allegations of mismanagement or breach of duty.


  1. Understand Your Rights: Beneficiaries should understand their rights under the will and the relevant probate laws. Seeking legal advice can help clarify their entitlements and options in the event of a dispute.
  2. Communicate with Executors: Open and regular communication with the executors can help prevent misunderstandings and resolve issues amicably.
  3. Consider Mediation: If disputes arise, beneficiaries should consider mediation a cost-effective and less adversarial way to resolve the issues.


  1. Gather Evidence: Claimants should gather as much evidence as possible to support their claim. This may include medical records, witness statements, and documentary evidence.
  2. Seek Legal Advice: Engaging a solicitor experienced in probate claims is crucial for assessing the claim’s merits and navigating the legal process.
  3. Explore Settlement Options: Exploring settlement options through negotiation or mediation can help resolve the dispute more quickly and cost-effectively than going to trial.

Practical Tips for Handling Probate Claims

Prevention and Planning

  1. Comprehensive Estate Planning: Encouraging individuals to engage in comprehensive estate planning can help prevent disputes. This includes regularly updating wills, discussing intentions with family members, and considering trusts or other estate planning tools.
  2. Clear Communication: Open and transparent communication about estate plans can help manage expectations and reduce the likelihood of disputes.
  3. Use of Professional Executors: Appointing professional executors can help ensure that the estate is managed impartially and in accordance with legal requirements.

Managing Disputes

  1. Early Intervention: Addressing potential disputes early through negotiation or mediation can help prevent escalation and reduce costs.
  2. Mediation and Alternative Dispute Resolution (ADR): Mediation and ADR can provide a more cost-effective and amicable way to resolve probate claims than court proceedings.
  3. Detailed Documentation: Maintaining detailed documentation of all actions, decisions, and communications related to the estate can help protect against allegations of mismanagement or breach of duty.


Probate claims are a complex and often contentious aspect of estate administration. Whether you are an executor, beneficiary, or potential claimant, understanding the legal grounds, procedures, and practical considerations involved in probate claims is essential for navigating these disputes effectively. At DLS Solicitors, we are committed to providing expert guidance and support throughout the probate claim process, ensuring that our client’s rights and interests are protected.

If you are involved in a probate claim or anticipate potential disputes, we invite you to contact DLS Solicitors. Our dedicated team of experienced probate solicitors is here to provide the expertise and support you need to navigate the complexities of probate claims with confidence and ease.


This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th July 2024.

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Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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