Contentious probate is the umbrella term for any dispute relating to a person's estate after their death.
The most common contentious probate claims are based on the will not being valid or claims for 'further provision' from a person's estate - this is where a person feels they should have been provided for, usually by a spouse or parent.
Wills can be challenged on various grounds, including that the person who made the will lacked mental capacity (called testamentary capacity in these cases) or did not know or approve of the contents of their will, perhaps because of the influence or involvement of another person. Wills can also be challenged if forgery or fraud is suspected.
It is important to note that it is not possible to challenge the will simply because of perceived unfairness or because the terms of the will are not to a person's liking.
In English law, the principle of testamentary freedom overrides. This means a person is free to leave their estate to whomever they wish, providing they have the required capacity to make that decision, it is recorded correctly in their will, and they are acting of their own free will and volition.
If the will is valid, but an aggrieved person, usually a family member, feels it does not make 'reasonable financial provision' for them when it should do, a claim can be brought under the Inheritance (Provision for Family and Dependants) Act 1975 for more generous provision from their estate. This is also the case if there is no will and the statutory intestacy rules are not favourable to them.
That doesn't mean that a person who feels they should have more inheritance from a will can make a claim in all circumstances. To claim under the Inheritance Act, a person must show a genuine financial need and/or evidence that the deceased person financially maintained them during their lifetime.
Other types of claim which are contentious probate claims are:
- Claim to interpret or clarify a will's meaning, where there is uncertainty, or it is not clear; this is known as a construction claim.
- Claim to rectify a will where there is a mistake in the will's content; this is known as a rectification claim.
- Claim to honour a deceased's promise, which has not reflected in their will. This is where a person to whom the promise was made has acted to their detriment, relying on the original promise. This type of claim is known as proprietary estoppel and is more common in farming families where a person has worked on the farm for their lifetime under the promise it would be passed wholly or partly to them.
- Claims about 'lifetime gifts' made by the deceased person and whether they are valid and made when the person had capacity and with their knowledge and approval.
- Claims regarding the correct ownership of a property, known as constructive or resulting trust claims.
- Disputes between executors and/or executors and beneficiaries regarding their conduct in dealing with the estate after the person's death. These are known as executor disputes and sometimes involve people seeking to remove individual executors.
- Professional negligence claims in respect of will drafting and/or estate administration.
There are also more niche types of claims which come under the term contentious probate. These include disputes regarding death bed gifts, or to use the technical term, 'donatio mortis causa' claims, Presumption of Death Act 2013 applications; relief from forfeiture applications; and disputes regarding the ownership and disposal of ashes.
The number of contentious probate claims has increased dramatically over the last couple of decades, and this increase is attributed to:
- Our society is getting wealthier, so it is more worthwhile for disappointed people to fight for what they feel they are entitled to.
- More people are making DIY wills where no professional advice has been sought, which means there is no independent evidence available to support whether the will is valid.
- Divorce and remarriage with children from former relationships and people living together as cohabitees and not necessarily marrying means that family structures are more unconventional.
- People are more aware of their legal rights and likely to be minded to take legal action.
- The subject of wills being contested regularly being in the media and in some high-profile celebrity cases.
