Personal

Contentious Probate

SOLVING PERSONAL LEGAL MATTERS

Contentious Probate is a term to describe disputes relating to Wills and Estates. Contentious Probate does not include claims under the Inheritance Act.

Claims that fall within contentious probate include claims to challenge the validity of a Will. The grounds to challenge the validity of a Will are set out in detail here and include:

Lack of proper execution. If the Will is not executed in accordance with section 9 of the Wills Act 1837, then it is not valid
Lack of mental capacity. If the person making the Will, the testator, did not have the required mental capacity at the time the Will instructions were taken and Will executed, then the Will is invalid
Lack of knowledge and approval of the terms of the Will. If the testator did not understand the terms of the Will, for example if the Will was in English and English was not their first language, then the Will is invalid
Fraud and forgery. If the Will was forged then it is not valid.

If you suspect a Will is invalid then the first step is to investigate the circumstances surrounding the drafting of a Will. A Larke v Nugus request can be made to the solicitor who drafted the Will for example, and medical records can be obtained.

It is important that Estate assets are protected and so we would usually advise you obtain a caveat to stop a Grant of Probate being issued and to protect the large assets of the Estate.

If an executor is refusing to obtain grant and administer the Estate then you may be able to apply for a citation to force them to take out the grant of probate.

In some cases an original Will or codicil may be in the possession of a person who will not release it, and therefore preventing the administration of the Estate. In these cases it is possible to apply under section 123 of section 122 of the Senior Courts Act 1981 for a subpoena. The effect of this is to either require a person to file the will at the Probate Registry or to attend court for examination as to their knowledge of the document.

If you have any questions about grounds for contesting a Will or require advice about any aspect of Wills and probate, get in touch. Call us today on 0800 689 3607.