Contentious Probate

Probate can be a prolonged and complex process depending on the nature of the estate and its size. However there are specific issues that can arise, of which we give some of the common examples and when we would recommend seeking professional legal advice. Do call us if you are at all unsure about the best way forward for the particular circumstances you are dealing with.

This article deals with the law in England & Wales. There are slight differences in Northern Ireland but Scottish Law is very different. Please call us for more information while those sections are in preparation.

Investigation by the Department for Work and Pensions (DWP)

The DWP will always carry out a check that the person who has died was not overpaid any state benefits. Any state pension or other DWP benefits paid to the deceased person after the date of their death must be repaid to the DWP as one of the debts on the estate.

You may be confident that the person who died was completely honest. Still, sadly, there are people who defraud the state by claiming benefits to which they are not entitled or continuing to claim legitimate benefits after they are no longer eligible for them. More often, there may have been accidental overpayments if a change of circumstances was reported late to the DWP, e.g. attendance allowance having been paid after the date someone moved to a care home. You cannot challenge a DWP decision to investigate. If they conclude that benefits were overpaid and must be reimbursed and you disagree with the decision, we recommend seeking professional legal advice.

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Investigation by His Majesty’s Revenue and Customs (HMRC)

HMRC may review the tax affairs of the person who has died to ensure that they have paid all the taxes they should have done during their lifetime. This is separate from the assessment of the tax liabilities of the estate, but the latter may be affected if HMRC there has been significant under payment of tax during life, thus reducing the overall size of the estate. HMRC may require the personal representative to provide a considerable number of documents as part of this process. If it seems significant sums of money may be involved we would recommend using a legal professional to administer the estate on your behalf who may also consult with an accountant specialising in tax.

Doubts about the validity of the Will

Although there are no rules about the paper that a Will is written on and it can be handwritten, typed or printed, it must be signed and dated by the person creating the Will (the testator) and there must be two independent witnesses who cannot be related to the testator nor can they benefit from the Will. There should be no additions or alterations to the Will. See more about this here

If the Probate Registry considers the Will to be invalid, the estate will be subject to the Rules of Intestacy which may deprive some beneficiaries of their inheritance, both individuals and charities. The Probate Registry will also require the original Will which they keep. If you cannot find the original Will but have a copy, or the original document has suffered damage from a flood or fire, we advise using a legal professional for probate. They will have the expertise and experience to advise you if the Probate Registry may accept the Will and what supporting evidence may be required.

An individual who believes the Will to be invalid can apply to the Probate Registry for a caveat which prevents probate being granted for a period of 6 months.

Situations and disputes with probate

The Inheritance (Provision for Family and Dependants) Act 1975 allows someone to make a claim on the estate even if they have not been named as a beneficiary in the Will. The usual circumstances are when someone who has been financially dependent on the person who died and it would be reasonable for provision for their support to have been written in the Will.

Even if the named beneficiaries are in agreement with the claimant regarding the validity of their claim and there is mutual agreement about how much the claimant should receive, it would be wise to use a legal professional to create the Deed of Variation.

If there is no agreement between the people involved, the claimant will need to instruct a solicitor to act on their behalf. We would strongly recommend that the executor of the estate also instructs a solicitor to administer the estate. This is one of the situations known as contentious probate.

The solicitor acting for the claimant will apply for a caveat. This prevents probate being granted for a period of 6 months which can be extended for a further 6 months. A caveat can also be arranged by a private individual.

If the legal professionals are unable to mediate a settlement between the executor and the claimant, the dispute will be decided by the courts. The costs both financial and emotional of such a course of action may be very high. It is very easy for the legal costs of the dispute to exceed the value of the estate so everyone involved loses money.

The person named as executor in the Will or the named beneficiaries may know of the existence of a Will but believe that someone else is preventing access to it. Someone else who has access to information about the deceased person’s accounts e.g. a non-married partner or a carer, may assume control of arrangements and dealing with the estate without disclosing to the asset holders that they are not the person entitled to do so. In some cases they may genuinely believe that they are entitled because of their relationship to the person who has died.

If the person who should be responsible for the estate makes an informal approach to the person who has started to deal with the estate and this approach is rejected, the executor or administrator should instruct a legal professional at the earliest possible opportunity.

The person responsible for the estate has to administer it with the best interests of the beneficiaries in mind. They may only claim legitimate expenses such as for necessary travel in connection with the estate and should expect to produce receipts in evidence.

If the value of the estate is reduced due to inexplicable delays or poor decision making e.g. accepting a price when selling a property that appears to be lower that should be achievable in prevailing market conditions, the beneficiaries may choose to make a claim against the executor for maladministration. This would also be possible if the executor has not placed statutory notices to gain indemnity against late claims on the estate by creditors.

We suggest calling us to explore whether the legal costs inevitably involved in such a claim would be greater than the compensation that might be won from the personal representative.

A complaint against a solicitor must first be addressed to the solicitor themselves to give them the opportunity to explain/defend their actions. If the complainant is not satisfied by the information offered, they should address their complaint to the senior partner of the company. Usually the website of the legal practice will give a link to their complaints policy and procedure.

If the client remains dissatisfied after this step, they should contact the Solicitors’ Regulation Authority. Instructions are on their website.