It's what they would have wanted


01 December, 2007

There is a growing trend for families and friends to argue over their inheritance which has seen many more disputed wills claims being taken to Court (Known as Contentious Probate). Some have been highly reported in the media from multi billion dollar actions in America such as the Anna Nicole Smith case to the smaller but still substantial estate of Mike Baldwin's as previously featured in the Coronation Street storyline.

So just what is Contentious Probate? This category of claim covers:
  • Disputes over the inheritance of a deceased estate in accordance with intestacy rules when there is no will left
  • Disputes over inheritance when a will has been made but the surviving relatives or friends do not agree that the will records the deceased wishes
  • Where there is a claim that the will itself is invalid

As house prices continue to rise and property ownership becomes more complex the value of estates is increasing. More and more couples who have children from a previous marriage are choosing not to re-marry, living with their partners instead, making it all the more imperative to have a legally drafted will in place.

There's a tendency to put off making a will until we are older. With the rise in the number of deaths of people under 50 this means an increasing number of people have made inadequate provision for the inheritance of their estates.

Contentious Probate claims can be made by a spouse, former spouse, partner, civil partner, child or any other person who can show that they were dependant on the deceased (including a mistress!). If you are thinking of bringing a claim it may be necessary to show that you were either dependant on the deceased or that you lived with them for two years or more prior to death. The Court can order that a reasonable financial provision is made for such an applicant including making a cash award or ordering that property be transferred into the applicants name.

However, time limits are critical in these types of claim. Any Court action would need to be commenced within 6 months. Therefore, if you suspect that you may have a claim, it is imperative that you seek legal advice on your claim immediately.

A claim may also be brought where the deceased made specific promises to give something on death to you or where there was a clear understanding between you and the deceased that you would inherit something on death. These types of claims can be difficult to evidence. You must be able to show that you acted to your detriment in relying on the promise or understanding. Although this detriment does not have to be in monetary value it is most common where children or family members work in the family business for very little remuneration on the promise or common understanding that they will inherit the business on death.

Contentious Probate also covers the situation where there is a will but it can be contested on a number of grounds. Either the will has not been drafted properly and therefore may not have legal effect or the deceased may not have possessed the necessary mental capacity or knowledge at the time the will was drafted. For example they were too ill at the time, suffering from a mental condition such as dementia or alzheimers, or maybe they were on strong medication that would affect their ability to understand what it was that they were doing. A will may also be contested if there is strong suspicion that the deceased was coerced into leaving something to a person. This is called undue influence and can occur when the deceased, who may have been elderly or infirm, leaves a large proportion of their estate to someone they had a lot of contact with or they had a close relationship with shortly before dying. There have been many successful challenges of a will where an elderly person has left money to nursing staff or friends who looked after them shortly before death, leaving out the family entirely.

These grounds of contesting a will can be significantly avoided if specialist legal advice is obtained in preparing your will. Here at Forbes we have a team of expert solicitors dedicated to the preparation of wills, including inheritance tax, trusts and probate.

However, if you do find yourself involved in a contested will, whatever the situation, Forbes has specialist solicitors who can:

  • Defend an action brought against an estate
  • Assist an applicant who claims they should inherit from the estate
  • Assist someone who wishes to contest a will for being invalid

The team is sensitive and discrete and can commence Court action quickly and effectively where advisable. They provide specialist advice and can assist in getting Barrister's opinions where necessary and medical experts if required.

Manisha Modasia, Solicitor.
Tel: 01254 222399 or email: Manisha Modasia


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