Contentious Probate

Losing someone close to you can be difficult, especially if you believe their estate is not being handled correctly or you are administering their estate and have to answer questions or claims.

Disputes over the validity of a Will, or how the administration of an estate is being handled, are common and can be complex, especially when there are substantial assets or difficult family relationships involved.

When a dispute occurs, expert legal advice is essential to ensure they are handled in the right way and to determine the best strategy to seek to avoid them becoming highly contentious, time-consuming and expensive.  

At Dutton Gregory, our specialist team of Contentious Probate solicitors are on hand to assist you with resolving these disputes smoothly and efficiently.

What is Contentious Probate?

Contentious probate is when there is a dispute relating to a person’s Will, trust or estate following their death.

It covers a wide range of disputes, from disagreements between beneficiaries and claims from individuals who feel they were unfairly left out of a Will, to litigation against executors who are deemed neglectful or to be abusing their position.

There are many reasons why you may require assistance from our specialist Contentious Probate solicitors, including:

• Where you have been unfairly left out of a Will, or not sufficiently provided for in a Will
• Where you are disagreeing with other beneficiaries of a Will
• Where a Will is invalid due to the deceased’s lack of capacity when making a Will, failure to accurately complete the Will, or if they were coerced by someone else
• When you believe the Will is fraudulent or has been forged
• When you feel an executor or administrator is not fulfilling their duties correctly

Our Contentious Probate Expertise

Our specialist contentious probate solicitors can help you with:

• Challenging a Will or defending a contested Will
• Estate administration disputes
• The removal of executors and trustees
• Concerns over lifetime gifts made by the deceased prior to their death
• Disputes relating to co-ownership of property included in the estate
• Claims under the Inheritance (Provision for Family and Dependants) Act 1975 by people who were not sufficiently provided for in a Will.
• Professional negligence claims against solicitors and Will writers

Challenging a Will

There may be questions over whether a Will is valid or if it truly represents the last wishes of the deceased.

We can provide specific advice on challenging a Will, which may include:

• Where the Will was not properly signed or witnessed
• The deceased lacked the relevant mental capacity to make a valid Will
• The deceased lacked proper knowledge of the contents of the Will
• The deceased was subjected to undue influence when making their Will
• If you were financially dependent on the deceased and were left out of a Will or not adequately provided for in the Will.
• It is suspected that the Will is forged or there is ‘fraudulent calumny’ involved (this is when someone makes false comments about another person which causes the testator to exclude that person from their Will)

We are experienced in applying for a caveat to prevent a grant of probate being issued whilst we investigate matters further.

If necessary, we can apply for the Will to be interpreted by the Court (known as ‘construing the Will’) or even ‘rectified’ so that it accurately reflects the most likely intentions of the deceased.

Defending a Contested Will

If you are dealing with the administration of an estate and are informed that someone is seeking to challenge the Will, it is important to seek early legal advice.

If someone alleges that a Will is invalid, they will usually be expected to make a claim.  Their first step will often be to enter a “caveat”, which prevents the executor from extracting a grant of probate. 

We are experienced in advising you on next steps. This may include “warning off” the caveat and applying for an “interim” grant of probate. 

Estate Administration Disputes

Where there are concerns about the way an estate is being administered, these should be raised as soon as possible and in the right way.

Our experienced solicitors can assist with a variety of concerns that can arise during the administration of an estate, including when it takes too long, misconduct by executors and administrators, and estate assets are being sold at below market value.

If necessary, we can assist you with seeking to remove and replace the executor or administrator.

The removal of executors and trustees

Executors have several important obligations, including they:

• must divide the estate in accordance with the terms of the will or the law of intestacy
• owe a duty of care to beneficiaries to treat them all fairly and not to favour one beneficiary over another
• must have no conflict of interest with the beneficiaries or with any aspect of the estate
• cannot profit from their role as executors (unless payment for their work is provided for in the will)
• must administer the Estate in a timely manner

If beneficiaries believe an executor is not fulfilling these duties they can ask the court to remove them.

Similarly, where there is no Will and administrators are tasked with dealing with the estate, they too can be removed by the court if the beneficiaries establish sufficient grounds.

If you believe that the executor or administrator of an estate is not fulfilling their responsibilities correctly, then you should seek early legal advice to explore whether they may be breaching their duties as an executor or administrator.

Our contentious probate solicitors can apply to the Court to request that an executor or administrator is replaced, particularly in situations where all communication has broken down between both parties.

Concerns over lifetime gifts made by the deceased prior to their death

Financial transactions and gifts the deceased made before death may be questioned during estate administration.

It is important these matters are resolved as soon as possible to protect the value of the estate.

Our contentious probate solicitors can assist with:

• determining if the deceased had the mental capacity to make financial decisions;
• concerns about undue influence over the deceased;
• returning wrongly gifted assets to the estate; and
• financial claims against those who have benefited from wrongly gifted assets or questionable financial transactions.

Disputes relating to co-ownership of property included in the estate

Where property included in an estate is jointly owned by another party, it can cause complications for those administering the estate and the beneficiaries. These issues must be cleared up swiftly to prevent probate delays and any impact on the estate’s value.

Our specialist Contentious Probate solicitors can assist with investigating the legal ownership of property, negotiating with co-owners over how property should be dealt with, and selling co-owned properties.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to make a claim against an estate if the deceased’s will or intestacy does not make reasonable provision for them.

We have experience in bringing and defending Inheritance Act claims and, regardless of which side we are on, we will work to achieve an agreed resolution wherever possible.

If you or someone you know was either unfairly left out of a Will or not financially provided for adequately under a Will’s instructions, then you may be entitled to make an Inheritance Act claim to try to receive financial provision.

To find out if you are eligible to make an Inheritance Act claim, please speak to our contentious probate solicitors, who can offer an assessment of your situation and discuss the likelihood of your claim being successful.

Professional negligence claims against solicitors and Will writers
If errors were made in the way a Will was drafted, it may be necessary to make a professional negligence claim against the person who prepared the Will to recover any losses .

We are experienced in advising on whether negligence may have occurred, making a professional negligence claim and rectifying the Will to reflect the wishes of the deceased.

How We Can Help?

Dutton Gregory’s expert team of Contentious Probate Solicitors is experienced in all areas of contentious probate and will sensitively guide you through the issues and take prompt action.

Duncan Scott is a member of Association of Contentious Trust and Probate Specialists (ACTAPS), demonstrating the exceptional Contentious Probate expertise we have at Dutton Gregory.

We understand that disputes between family members can quickly escalate. We take a sensitive, personal approach and will guide you through the issues and take prompt and firm action.

We will tailor our approach to reflect your goals and concerns. Our contentious probate team are highly skilled in mediation and other alternative dispute resolution methods, as well as having the robust litigation skills needed should court proceedings be required.

We assist clients by manging the entire dispute resolution process from identifying and analysing claims; providing bespoke, practical, and down-to-earth advice; to pursuing the appropriate dispute resolution process.

We achieve success for our clients through negotiation, mediation and court proceedings where necessary. We take a sensitive approach, given the often complex family dynamics involved, whilst being prepared to apply pressure where necessary to get the best resolution.