Contentious 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.