What is Contentious Probate? Definition and Explanation

Contentious probate is the legal term used to describe a dispute arising during the administration of a deceased person's estate or will. This might be a challenge to the validity of someone’s last will or it might be a claim on an estate if you feel that you ought to have been left greater financial provision due to your relationship with the deceased.

Bringing a contentious probate case can be costly and time-consuming, and you should not do so without due consideration and assistance from a legal expert, such as those at JMW Solicitors.

In the following guide, JMW's contentious probate solicitors will explain some of the most common claims within the field of contentious probate and outline what the process involves.

How to contest a will

There are a number of steps you must take and requirements you must meet to successfully contest a will. The first thing you should do is speak to an expert contentious probate solicitor. While it may be possible to contest a will independently, claims of this nature are complex and there can be unforeseen aspects to a case that require the knowledge of an experienced contentious probate solicitor. Professional contentious probate solicitors can assess your circumstances and inform you of your chances of success, identify key factors that will strengthen your argument and facilitate communications with relevant parties.

Contentious probate specialists will always discuss with you mediation and other alternative dispute resolution possibilities as these can reduce the time and cost spent and allow the parties to move on with their lives more quickly and without the risk of court proceedings. If court proceedings become necessary, your solicitor will be able to represent you, presenting your argument and guiding you through the process reducing the stress of the dispute as far as possible.

Can I contest a will?

To successfully contest a will, you must do so for a valid reason. The accepted reasons for contesting a will include:

• The testator lacked testamentary capacity - despite the will being valid and meeting every other requirement, it can be overruled if the testator did not have the required capacity at the time of giving instructions and executing the will
• The testator was subject to undue influence from another person - the testator may have been coerced into making a will in a particular way
• The testator did not understand the will-writing process enough to approve it or suffered from a communication impairment
• The signatures on the will was forged

Read more about grounds for contesting a will here.

The difficulty of your case will be determined by the reason you are opening a dispute and how much evidence you have in support of it. For instance, in cases where you believe the testator did not have the mental capacity to make a will, you may need to find medical records to prove this and get an expert to agree. In cases where you need to prove that the testator made their will due to undue influence, gathering evidence may be more tricky as they may have been coerced subtly and verbally and without anyone witnessing it. Our experts will be able to help you identify evidence, which could support your case.

To pause the administration process and allow time for the dispute to resolve, you may need to apply for a caveat by appealing to the Probate Registry - your solicitor will help you to do this.

Once we have built a case with evidence, we will approach the other party and can attempt mediation if all parties want to resolve the dispute. This is the process of trying to negotiate with the assistance of a neutral third party. If this is not successful, the dispute may continue and ultimately the court will decided which side is correct.

Can I seek financial provision from an estate if excluded or I feel I deserve more?

If you have been excluded from a will or under an intestacy, or if you have been left something but you do not feel that it is enough, then you may be able to bring a claim in an estate for greater financial provision. Such a claim would be under the Inheritance (Provision for Family and Dependants) Act 1975.

For example, if you were in a marriage or civil partnership with the deceased then you are likely to be in a good position to bring such a claim. Other people who can bring claims of this nature are certain cohabitees and children or other dependants of the deceased including anyone who was being maintained by the deceased before they passed away. 

How much does it cost to contest a will or seek provision from an estate?

When you begin a contentious probate claim, you will need to consider how you can fund such a claim. Claims can be costly and you will need to be advised of the benefits and risks of different firms of funding.

You may be able to cover the costs of your claim in the following ways:

• No win, no fee agreement
• Deferred fee agreement
• Insurance for legal expenses
• Private billing every month

The cost of contesting a will depends on your unique situation and will be affected by the length of time the contentious probate process takes and the work required by your solicitor. When you discuss your situation with us, we will provide you with an estimate on how long your case is likely to take and what the cost is likely to be. If successful, it is possible that you will be asked to pay towards the other party’s legal costs. We will advise you on these potential benefits and risks alongside the assessment of your case.

What is the deadline for contesting a will?

Some contentious probate disputes have deadlines for contesting and some do not. This depends on the type of claim being made. Disputes seeking financial provision and the correction of an error must be brought within six months of the will being accepted in probate or the court may prevent you from bringing the claim at all. Claims made about the validity of the will can be made at any time after the will is administered, but waiting longer may reduce the relevance or accessibility of evidence, therefore making it more difficult to make a successful claim. In all cases, you should seek advice quickly so that you can be advised as to when your particular claim would need to be brought.

Talk to Us

To get your contentious probate dispute started, speak to the expert contentious probate solicitors at JMW today. Call us on 0345 872 6666 or fill out an online contact form and we will be in touch at a time convenient for you.