Contentious probate – what are the rules?

When a person dies, the time it takes to sort out their estate can vary dramatically. If the deceased left clear instructions in the form of a detailed Will and the content is not contested then probate can be completed very quickly.

However, if someone dies intestate (without having a Will) or the Will is contested by one or more of the beneficiaries (or even someone who thought they should be included in the Will but wasn’t), things can slow to a crawl. Contentious probate rules exist to ensure that a painful and stressful situation isn’t made worse by clarifying what can be done to resolve the situation.

What is contentious probate?

If a Will is read and an individual or parties feel that they are receiving less than their rightful inheritance, they can contest the Will. If a person has died without a Will then the distribution of the estate can be contested in the same way.

Situations where contentious probate could arise include:

  • A Will that has not been executed correctly or that beneficiaries feel has been dealt with in an improper manner
  • Where a Will does not entirely distribute all of a person’s estate and parts of the estate are contested among several people
  • The estate doesn’t adequately provide for any dependents who may be left in financial hardship as a result

Other factors may also be taken into consideration, such as the mental capacity of the person making the Will, whether any coercion or undue influence was put on a person to change or alter their Will, or outright fraud. As all of this needs to be proven, contentious probate can take a long, long time to resolve.

An emotional time

At a time when emotions are raw and people are grieving for the loss of a loved one, a contested Will or probate can drive a wedge through family relationships and friendships. So it’s important that the situation is handled skilfully and professionally by a party that everyone accepts has no vested interest in the outcome. Rather than trying to resolve disputes internally, executors are best advised to call in a neutral professional party to ensure everyone’s voice is heard.

What can trigger a contentious probate situation?

A wide range of common situations can cause contentious probate problems, most of which focus on the distribution of an estate where recipients feel that they haven’t received either what they had been promised, what they were expecting, or if a Will doesn’t cater for the financial needs of dependents.

It can also be a result of a Will being ‘lost’ or destroyed, doubts over whether an amended Will is legally binding or that changes have been made under duress, or the inheritance hasn’t been paid to relatives (as in the classic ‘leaving everything to the local cat’s home’ scenario). If any of the reasons for contesting a Will are based on a belief that fraud has been committed, then the Police may become involved and launch an investigation.

All of this can mean that the Will or estate remains in limbo until everything is sorted out. And that could take years.

Years? Really?

Yes, years. At times, probate can sometimes move relatively slowly, regardless of whether there is any contest to the contents or not. The Hollywood idea of everyone sitting around a table while the solicitor reads out who gets what is a myth. The vast majority of probate is carried out either by professionals such as probate law solicitors, or a trusted family member who may or may not have any legal training.

The process usually takes a minimum of six months if there are no hiccups or challenges. However, if a Will is challenged then you could end up going through the courts for months or even years. And the longer it takes, potentially the less of the estate is left to divide up between the recipients unless of course the Court awards one of the parties to pay the costs, regardless of the outcome. So the most important thing is that contentious probate is sorted out as quickly as possible before the entire value of the estate disappears in legal fees, unless of course the Court orders one of the parties to pay those costs.

If you feel that you’ve been left out of a Will, were expecting to receive more than you thought, or are an executor facing a contentious probate situation, talk to one of our probate experts today for a confidential consultation and professional guidance on how to resolve the situation.