Contentious Probate FAQs
Dealing with the death of a loved one is difficult enough, but when disputes arise over the validity of a will or the distribution of an estate, it can make the process even more stressful. In this blog post, we will answer some of the most frequently asked questions about contentious probate, helping you understand the potential challenges, and the steps involved in resolving such disputes.
What is contentious probate?
Contentious probate is a legal dispute over the administration and distribution of a deceased person’s estate.
Who can see a copy of the will?
Only the executors named in the will are entitled to see it before a Grant of Probate is issued. If anyone else asks for a copy, all the executors must agree for it to be disclosed.
Following the Grant of Probate, the will becomes a public document and can be obtained from the Probate Registry.
If a Grant of Probate is not required, for example, if the estate is small, then the will does not become a public document.
Can I do anything to stop a Grant of Probate being issued?
If you have concerns about the validity of a will because of the manner in which it was made for example the testator lacked testamentary capacity, was being unduly influenced and/or coerced into making it , you can apply to the court to enter a “caveat”. This prevents someone else from obtaining a Grant of Probate without you first being given the chance to object. During that time, we can help you by working towards a meaningful resolution to your claim.
When should I consider contesting a will?
You might consider contesting a will if you believe it is invalid, forged, or if you have concerns about the deceased person’s mental capacity. You might also have concerns about the validity of a will, the actions of executors, or disputes over the distribution of assets.
Judkins solicitors can help you assess whether your concerns have merit, and how best to proceed with a claim.
How long do I have to contest a will?
The time limit for contesting a will depends on the nature of the dispute. For example, you usually have six months to make an Inheritance Act claim after probate is granted. However, there is no time limit for challenging a will on the grounds of fraud. Generally speaking the longer you leave it the harder it is.
Who can make a contentious probate claim?
Anyone with an interest in the estate can make a claim, including family members, beneficiaries, and anyone who believes they were wrongly excluded from the will. In order to contest a will, there must be sufficient legal reason to do so.
What happens during a contentious probate case?
The first stage begins when a potential issue is identified. Seeking early legal advice is crucial; our experienced solicitors at Judkins can assess your situation, explain your options and outline potential outcomes.
Before formal proceedings are issued, parties must follow the pre-action protocol, which includes considering whether dispute can be resolved without going to court. This might include exchanging information and documents, and entering into correspondence to clarify issues. Many disputes can be resolved through mediation, where an impartial mediator helps parties to reach a mutually acceptable agreement. This process is quicker and less costly than going to court.
If mediation fails, the next step is to issue a claim in court. This involves submitting formal legal documents outlining your case and the relief sought. The defendants (typically the executors or other beneficiaries) must respond to the claim setting out their position and any defences they wish to make.
The court will usually schedule a case management conference to set a timetable for the case, including deadlines for evidence submission, expert evidence and dates for hearings. Both parties are required to disclose all relevant documents to each other’s case whether they support their case or not (unless they are privileged documents); this ensures that the case is decided based on all the available evidence and that each party is aware of the evidence held by the other. In some cases, expert evidence may be required. For example, medical experts might be needed to testify about the deceased person’s mental capacity at the time the will was made (referred to as testamentary capacity)
The court may hold a pre-trial review to ensure both parties are ready for trial and to resolve any outstanding procedural issues. Even at this late stage, parties may attempt the settle the dispute out of court to avoid the uncertainties and costs of a trial.
What happens at trial?
At trial, both parties present their cases to the judge, including any witness testimony and cross-examination. The judge will then deliver a judgment based on the evidence presented which may involve validating or invalidating the will, removing executors, or redistributing assets.
The parties must comply with the court’s decision. However, if a party is dissatisfied with the judgment, they may seek permission to appeal. Appeals are typically based on errors in law or procedure, rather than re-evaluating factual evidence.
How long does a contentious probate case typically take?
Timeframes can vary dramatically, and it is impossible to provide an estimate as to how long it may take to resolve without first assessing the specifics of your claim.
Navigating contentious probate can be a daunting process, but understanding the stages involved can provide clarity and direction. At Judkins Solicitors, we are dedicated to guiding you through each step with expert legal advice and compassionate support. If you are facing a contentious probate issues, we are here to help. Contact us today.