What is contentious probate?
Contentious probate is an umbrella term that generally covers any dispute involving the estate of someone who has died. “Probate” refers to the proving of a Will, which can be disputed or contended.
There are several ways disputes over an estate can arise, and Mayo Wynne Baxter are on hand to help deal with any contentious probate.
Common Reasons For Will Disputes:
Common matters dealt with by contentious probate lawyers are disputes over the validity of a Will. Grounds for contesting a Will are:
- Lack of mental capacity. The definition of mental capacity that applies to Wills is that a person must be able to:
- Understand the nature of making a Will and its effects.
- Understand the extent of the property of which they are disposing.
- Comprehend and appreciate the claims they give effect to.
- Must not be affected by any disorder of the mind or insane delusion.
Determining capacity is not always straight forward. For example, if someone is living with a memory impairment such as dementia it may indicate that they do not have capacity however, such a diagnosis does not automatically mean that they do not have the level of mental capacity required by law to make a Will. These claims tend to rely on witness and medical evidence to determine whether the Deceased had the necessary mental capacity at the time of making the Will.
- Undue influence. In this context it generally means someone is being accused of ‘poisoning the mind’ of the Deceased against another family member. This claim has a high threshold of proof, and it will usually depend on the individual facts whether or not a claim is likely to succeed.
- Lack of knowledge and approval of the contents of the Will / their assets and
If a Will is found to be invalid due to any of the above, the last validly executed Will will be followed instead. Or, if there is no Will the intestacy rules will apply. The intestacy rules set out which family members will inherit the estate if no valid Will is left i.e., if you have a husband, wife, or civil partner they will inherit first.
This is a complex area of law; it is important to take legal advice as early as possible. Consider reaching out to one of our expert contentious probate solicitors: get in touch and we can answer your questions and show you how we can help.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).
The Inheritance Act allows for certain categories of people to make a claim against an estate if they feel they have not been left reasonable financial provision by the Deceased i.e. they are struggling financially and they feel they should have been left more.
Who can make a claim under the Inheritance Act?
The categories of people who can potentially bring a claim are:
- Spouse or civil partner of the Deceased;
- Former spouse or civil partner of the Deceased (as long as they have not remarried);
- A person living with the Deceased for 2 years prior to death as if they were a spouse or civil partner;
- A child of the Deceased;
- A person who was treated as a child by the Deceased and
- Anyone who was being maintained by the Deceased at the time of their death.
It is important to take legal advice early if you think you may have such a claim as there is a strict deadline for issuing Inheritance Act claims at Court.
Disputes with Executors / Administrators:
Executors are appointed by the Deceased under a Will to administer their estate. They can appoint either lay people or professionals such as Solicitors.
An Administrator does the same role as an Executor but under a different name; Administrators are appointed when there isn’t a Will.
Whether acting as Executor or Administrator there are a number of duties that need to be complied with when dealing with an estate.
Common issues that arise during an estate administration are:
- Executors or Administrators not getting on and not agreeing on how best to administer the estate. We can assist with negotiating between parties and ensuring Executors / Administrators are complying with their obligations and duties.
- Beneficiaries can become frustrated with Executors, and they may not always be aware of what information they are entitled to or what action can be taken against Executors who are not complying with their duties.
- The terms of the Will may not be clear, and the Executors / Administrators may need help with interpretation.
We have experience acting for both Executors and Beneficiaries.
Do contentious probate lawyers only advise on Estate disputes?
No, there are other disputes that contentious probate lawyers can advise on.
Trust disputes can be similar to Executor disputes. There may be:
- Concerns that the Trustees are not acting properly or are not managing the Trust how they should.
- Questions about the mental ability of the person who set up the Trust to give instructions (i.e., capacity issues similar to those mentioned above).
- Concerns that the Trust does not actually reflect the wishes of the person who created it or
- The Trust document in unclear.
We can act for either Trustee of Beneficiary.
Disputes with attorneys appointed under a Lasting Power of Attorney (“LPA”).
LPA’s allow you to appoint someone to manage your finances and/ or to make health and welfare decisions when you are no longer able to do so. Commonly, people choose to appoint trusted family members, such as their children, as attorneys. There are a number of rules and obligations attorneys should follow which the Office of the Public Guardian (“OPG”) oversees.
Unfortunately, sometimes there are concerns about how the attorney is behaving i.e. there may be concerns about how an attorney of a property and finances LPA is dealing with the person’s finances. Commonly, attorneys wrongly use funds for their own benefit instead of for the benefit of the person who appointed them.
We can assist with advising on attorney on their duties or advise on reporting concerns to the OPG if necessary.
Acting for Deputies.
A deputy can be appointed by the Court when an attorney is removed. If the attorney has been removed for misappropriating funds belonging to the person they were acting as attorney for, the Court may give the deputy permission to take civil action against the attorney to recover those funds.
Contentious probate lawyers advise on an array of disputes in complex legal areas. Dealing with probate and the Estate of a loved one can be a difficult time, particularly if there are concerns about a Will or disagreements about the Estate.
Nothing in this article should be taken as giving specific legal advice.
If you would like advice on the matters discussed in this article, please contact the team on 0800 84 94 101