Answering Your Questions Concerning Probate Disputes

Probate disputes can drive an irretrievable wedge between loved ones and should therefore never be started or defended without receiving advice from an experienced, compassionate, and knowledgeable Wills and Probate Disputes Solicitor. In this article, we answer some of the most frequent questions we get from clients who are unhappy with some aspect of probate.

What is probate?

Probate involves obtaining a grant of representation, such as a grant of probate or letters of administration, which gives an executor or administrator the legal authority to manage the deceased person’s affairs. An executor is named in the deceased’s Will, while the administrator is appointed by the Court in situations where the deceased dies intestate (without a Will).

What is contentious probate?

Contentious probate arises when there are disputes or conflicts among the beneficiaries, family members, or other interested parties regarding the administration or distribution of the deceased’s estate. These disputes can be based on various grounds, including:

• The authenticity or validity of the Will. This can include allegations of undue influence, lack of testamentary capacity, fraud, or improper execution of the Will.
• Disagreements regarding the interpretation of certain provisions or terms in the Will due to ambiguous language and/or confusing terms.
• Claims for financial provision under the Inheritance (Provision for Family and Dependents) Act 1975 .
• Disputes between co-executors or co-administrators regarding the administration of the estate, for example disagreements over the sale of assets, distribution of assets, or the handling of debts and liabilities.
• Allegations of fraud or misconduct by the executor, administrator, or other parties involved in the probate process.

Is there a time limit for bringing contentious probate claims?

There is no statutory time limit for bringing a contentious probate claim concerning whether or not a person has an interest or share in the deceased’s estate, claims that the Will was invalid or inauthentic, and claims for revocation of a grant already made, or defences to a claim, for example, on the basis of undue influence or want of knowledge and approval. However, the Court can and will strike out claims that prove to be frivolous, vexatious, or an abuse of process.

Section 22 of the Limitation Act 1980 imposes a 12-year limitation on “any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy)”, commencing from the date on which the right to receive the share or interest accrued.

Claims brought under the Inheritance Act 1975 must filed within six months of grant of probate.

How do I bring a contentious probate claim?

The first step in bringing or defending an action for contentious probate is to contact an experienced Wills and Probate Disputes Solicitor who can provide advice as to whether a valid claim exists and how best to proceed.

Once a claim has been issued, the process of granting probate or letters of administration will be paused until either the dispute is resolved or the Court states that the process can continue.

As with most legal claims, a Wills and Probate Disputes Solicitor will encourage all parties to the disagreement to try and reach a resolution outside of court using alternative dispute resolution (ADR) methods such as mediation and negotiation. Not only will an early settlement save time and money, but it is also far less stressful for everyone involved.

What is required to show a testator lacked mental capacity to make or understand a Will?

Proving that a person lacked the mental capacity to make a Will is challenging because;

1. There is a presumption under the law of England and Wales that if a Will has been legally drafted and executed, unless there is evidence to the contrary, it is presumed that the testator was a person of competent understanding, and
2. In England and Wales, if a Solicitor is preparing a Will for an elderly or seriously ill person, they should arrange for a doctor to examine the testator and confirm their capacity and understanding. This is known as the Golden Rule (or as one judge described it “the golden if tactless rule”). The medical examination is not designed to establish mental capacity but to mitigate the risk of potential disputes concerning capacity after the testator’s death.

The test used by the Courts to establish testamentary capacity is that of Banks v Goodfellow (1870). To establish mental capacity, the testator must:

• Understand the nature of making a Will and its effects.
• Comprehend the extent of the property of which they are disposing.
• Be able to understand and appreciate the claims to which they ought to give effect
• Have no disorder of the mind that distorts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

Expert witness opinion from a medical practitioner may be used to assist the Court in establishing whether a testator had mental capacity at the time of creating their Will, but the ultimate decision is one for the Court itself to make. In Hughes v Pritchard [2022] EWCA Civ 386, the Court of Appeal overturned a High Court decision to refuse a grant of probate of a Will for lack of testamentary capacity. The appeal court concluded that the judge at first instance had focused more on whether the testator had capacity to understand the change he was making from previous Wills than on whether he had capacity in the sense of Banks v Goodfellow. The Court of Appeal also ruled that the High Court judge had considered the fairness of the testator’s dispensation of assets between beneficiaries which applied the law on establishing mental incapacity incorrectly.

How Askews Legal can assist with Wills and probate disputes

We have an experienced team of contentious Wills and probate solicitors who can advise and represent you on making or defending a claim. These types of disputes are extraordinarily complex, and it is crucial to instruct an expert solicitor to ensure your best interests are protected.

Please call us on 02476 231000 or email enquiries@askewslegal.co to make an appointment.

Please note: this article does not constitute legal advice.