Disputes over a loved one’s estate can be emotionally and legally complex. While many estates are administered without issue, a growing number are subject to challenge. This area of law, known as contentious probate, involves disputes about the validity of a will or the fairness of its contents.

What is Contentious Probate?

Contentious probate refers to any dispute arising in relation to the administration of a deceased person’s estate. This may include challenges to the validity of a will, claims that reasonable financial provision has not been made, disputes between executors or beneficiaries, and concerns about the conduct of executors.

Such disputes are typically dealt with in the High Court, often within the Chancery Division.

Challenging the Validity of a Will

A will may be challenged on several established legal grounds. The most common are set out here.

Lack of Testamentary Capacity

For a will to be valid, the person making it (the testator) must have had sufficient mental capacity at the time it was executed. The legal test originates from the case of Banks v Goodfellow (1870), which requires that the testator: 

  1. understood the nature and effect of making a will; 
  2. understood the extent of their estate; 
  3. comprehended and appreciated the claims of potential beneficiaries; and 
  4. was not affected by any disorder of the mind that influenced their decisions.

Capacity is frequently disputed where the testator was elderly or suffering from conditions such as dementia.

Undue Influence

A will may be invalid if it was made under pressure or coercion. Unlike general civil claims, undue influence in probate requires clear evidence that the testator was effectively overborne. Mere persuasion is not enough. These claims are often difficult to prove, as they typically rely on circumstantial evidence rather than direct proof.

Lack of Knowledge and Approval

Even where a will appears valid on its face, it may be challenged if the testator did not fully understand or approve its contents. This may arise where the will was prepared by a beneficiary, the testator was visually impaired or illiterate, or there are suspicious circumstances surrounding execution.

Improper Execution

Under the Wills Act 1837, a valid will must: 

  1. be in writing; 
  2. be signed by the testator (or by someone in their presence and at their direction); and 
  3. be witnessed by two independent witnesses present at the same time.

Failure to comply with these formalities can render a will invalid.

Fraud or Forgery

In rare cases, a will may be challenged on the basis that it is forged or that the testator was deceived into signing it. These are serious allegations and require strong evidence.

Claims for Financial Provision

Even if a will is valid, certain individuals may bring a claim if they have not been left reasonable financial provision. 

These claims are governed by the Inheritance (Provision for Family and Dependants) Act 1975, which sets out that only certain people will have grounds for making such a claim. 

The court will consider factors such as the financial needs and resources of the claimant, the size and nature of the estate, the relationship between the claimant and the deceased, and any obligations the deceased had towards the claimant. 

Recent case law has shown that adult children can, in some circumstances, succeed in claims even where they are financially independent, although such cases remain fact-specific.

Time Limits

Strict time limits apply in contentious probate matters: 

  • Claims under the 1975 Act must generally be brought within six months of the grant of probate. 
  • Challenges to the validity of a will should be made promptly.

Delays can significantly prejudice a claim, particularly if the estate has already been distributed.

Practical Considerations

Before commencing proceedings, it is important to consider the following:

Evidence

Contentious probate claims are heavily evidence-based. This may include: 

  1. medical records; 
  2. witness statements; 
  3. previous wills; and 
  4. correspondence and solicitor’s files.

Early legal advice can help preserve key evidence.

Costs

These disputes can be costly. While the court has discretion regarding costs, the general rule in litigation is that the unsuccessful party may be ordered to pay the successful party’s costs.

However, in probate disputes there are exceptions, particularly where the circumstances of the will or the conduct of the deceased have led to the dispute.

Alternative Dispute Resolution

Courts increasingly expect parties to attempt settlement before proceeding to trial. Mediation is commonly used in contentious probate and can offer: 

  1. a quicker resolution; 
  2. reduced legal costs; and 
  3. greater control over the outcome.

Conclusion

Contentious probate claims require careful legal and strategic consideration. Whether challenging the validity of a will or seeking financial provision, the legal framework is complex and highly fact-sensitive. 

If you are concerned about the validity of a will or believe you have not been adequately provided for, it is essential to seek specialist legal advice at an early stage. Acting promptly can make a significant difference to both the prospects of success and the overall cost of a claim.

Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation. For more details of our services, please email justice@griffin.law or call 01732 52 59 23.

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