Contentious Probate/Confirmation

Tips and pointers in making sure that your will provides for your loved ones

Contentious probate is one of the most increasingly frequent causes of litigation. Families and beneficiaries should be aware that a will left by their loved ones may possibly be contested by a third party. This is due to the fact that the during the creation of the will, certain details may be incomplete or left open to interpretation.

It doesn’t matter the size of the estate, when certain assets in the will are left to be challenged, someone may always try to take advantage. This could lead to not only distressed beneficiaries, but also major problems such as insolvent estates.

The most common reason for a will to be contested, is when a party feels that they have not received a sufficient portion of the estate, and may make a claim under the Provision for Family and Dependents Act (Inheritance Act 1975). This act outlines that upon death, everyone is legally obliged to provide for their spouse, children and dependents.

These disputes usually occur when there are children from several marriages, or for example, if an illegitimate child comes to light, that has not been mentioned in the will.

Simple administration mistakes can prove to be very costly down the line. Details such as misplaced or missing signatures can invalidated whole claims to inheritance or at least prolong the process through appeal procedures.

An example could be, if two parents of an adopted child were to die, and not sign their wills properly, then the child would receive nothing. Upon their death, the law would state that because the wills are invalid, and that they died intestate (without a will). According to rules of intestacy, the next related person would have claim to the entire estate.

Some general pointers on avoiding contentious probate:

Hire a solicitor, while the costs of hiring legal aid may seem as an unnecessary expense, in the long run it may serve to save a lot of stress and legal trouble

Have a competent and dependable individual as your executor

Make sure to research your family history and list all your relatives before writing your will

Make any provisions for organisations or charities, if applicable

Have a thorough inventory of all your possessions, private and businesses assets

Update your will regularly

Make sure that your signature is witnessed, and let your solicitor or executor know where the will is stored for safekeeping

Read the Inheritance Act, it is a complex piece of legislation and if you are unsure about any aspect of it, seek professional advice

Have a ‘No Contest Clause’ (in terrorem) in your will
You can write an ‘Inheritance Act Statement or Declaration alongside your will, this can allow you to leave differing amounts or to completely leave out certain people from the will

Consider lifetime trusts or revocable living trusts

In Scotland, spouses, civil partners and children have rights to the estate whether there is a will or not.