What is ‘contentious probate’?

Contentious probate is sometimes a difficult practice area to define. Broadly speaking, contentious probate refers to disputes that arise out of a deceased person’s estate. Usually this involves a disagreement about the validity or meaning of a Will, but contentious probate disputes can also extend to arguments about how someone’s assets are to be distributed and the wider administration of their estate.

There are many reasons why contentious probate disputes are widely reported to be on the rise. Many consider that an increasingly elderly population taken together with a significant transfer of inter-generational wealth are increasing the likelihood of families or other interested parties disagreeing about a deceased person’s estate. Whilst that might be true, contentious probate is not a new area of law and these kinds of disputes are not a recent trend.

Some common types of contentious probate disputes include:

  1. Will validity disputes

Perhaps the most common type of contentious probate dispute is where there is a disagreement about the validity of a deceased person’s Will. There are many grounds to argue that a Will might be invalid. For instance, it might be that the legal formalities for executing the Will were not followed. Alternatively, a disappointed beneficiary under a previous Will or intestacy might argue that the deceased lacked the testamentary capacity.

These are just some examples and for more information on the ways to challenge a Will please see our previous article here.

  1. Interpretation disputes

If the Will in question is a legally valid document, there might still be disputes surrounding the ‘construction’ or interpretation of the Will itself. This occurs where the wording of all or part of the Will is unclear. It is common for these types of disputes to occur where disappointed beneficiaries do not appear to have benefited from a deceased person’s Will in the way they hoped. If the parties cannot agree how the Will should be interpreted, then the court can be asked to decide.

  1. Rectification disputes

Linked to interpretation disputed, are disagreements about whether a Will contains a mistake. It is possible to rectify or correct a Will if it does not carry out the deceased’s intentions owing to a clerical error or a failure by the Will drafter to understand the deceased’s instructions. These types of claims require convincing evidence as to the deceased’s intentions which is not always available. Beware also that if the Will drafter understood their instructions but simply failed to carry these out, then the appropriate claim is more likely to be one of professional negligence against the Will drafter.

  1. Executor and administration disputes

Executor and administration disputes can encompass a wide range of different scenarios. It is not uncommon for executors and beneficiaries to disagree about the best way to administer a deceased person’s estate. The most common complaint a beneficiary might have is that the process of administering the estate is taking too long. More serious disputes arise where beneficiaries consider that an executor is causing a loss to the estate. The technical term for these types of disputes is ‘devastavit’, which essentially means ‘waste’. This can cover a wider range of circumstances and the court must strike a careful balance between the right of beneficiaries to hold executors to account and not making the office of executor too onerous.

These are just some of the common types of claims typically referred to contentious probate disputes. Pursuing any kind of contentious probate claim is a complex process and is an area that requires specialist advice. If you are considering bringing a claim, or are currently facing one, and would like to discuss your options further, please contact William Coon.

Please note that this article has been prepared for information purposes only and is not a substitute for legal advice.