Losing a loved one will always be a difficult time filled with high emotion. So, when the time comes to distribute the deceased person’s estate in accordance with their wishes, contested probate can make the process all the more distressing.
Despite causing added upset, research carried out by insurance provider Direct Line discovered that probate disputes are on the rise. They found that around 12.6 million (24%) of people would be willing to raise a dispute over a loved one’s will if they felt the estate had not been divided up properly.
The results from the Direct Line attitude survey revealed that areas of the North West are amongst the top ten regions most likely to contest a will. That’s 22% of Manchester residents and 21% of Liverpool residents indicating they wouldn’t be afraid to raise a dispute over a loved one’s last wishes.
Here we look at the probate process and what happens if probate is contested.
WHAT IS PROBATE?
Probate is a formal legal process for ensuring a deceased person’s Estate, their assets and their belongings, is distributed and shared in accordance with their wishes. The person should have named an Executor in their Will. Usually, if the value of the Estate is worth over £10,000, the named executor will need to apply for a Grant of Probate, however, there are some exceptions to this. The Grant of Probate will provide the Executor with the legal authority to distribute assets and finalise any outstanding personal affairs.
WHAT IS CONTESTED PROBATE?
Contested or contentious probate can relate to any dispute raised in relation to the deceased person’s Will. Disputes usually arise when a seemingly unexpected heir or beneficiary is included in the Will or if an individual receives a larger gift than anticipated. People may also take issue over the value of assets, how the will has been interpreted, or having to deal with a challenging executor.
WHAT GROUNDS DO YOU NEED TO CONTEST A WILL?
The Direct Line survey showed the most common reasons for attempting to block the probate process. This includes:
Undue influence: Where it is believed the deceased was pressured or forced to sign a Will. The person claiming undue influence must have strong evidence for this to prove successful.
Lack of knowledge and approval: The person making the will was not aware of its contents or there are suspicious circumstances surrounding the Will.
Testamentary capacity: Whether the deceased person had mental capacity to make or change their Will
Lack of valid execution: The Will didn’t meet legal requirements when it was signed. This calls the choice of witness, or how the Will was signed, into question.
Fraudulent wills and forged wills: Documents that have been faked in an attempt to pass them off as an authentic will.
WHAT HAPPENS IF PROBATE IS CONTESTED?
The process of contesting a Will is highly complex, and if it progresses to Litigation it can result in high financial costs and it can be an extremely emotional process.
If a person objects to the contents of a Will, they will need to seek advice. Depending on the circumstances they may choose to enter a Caveat, based on the grounds for contesting a Will, to prevent a Grant of Probate from being issued in order to pursue the dispute.
If a dispute is unavoidable then all parties should seek professional legal advice, and if possible, a local resolution should be sought.
TIPS FOR AVOIDING PROBATE DISPUTES
- Remember that when you make a will you have the right to distribute your estate as you choose.
- Talk openly with family members or other beneficiaries about how you would like to share your assets
- Seek advice from a solicitor when preparing a Will
- Provide an accompanying document that outlines your reasons for making your decisions
Contested probate can present a number of challenges, especially during times of grief and loss.
Our team of solicitors are on hand to offer advice and compassionate support to help you through difficult probate disputes. Speak to our team or drop into our Widnes office to find out more about our wills and probate services or call us on 0151 424 5656.