What are the most common types of contentious probate?

‘Contentious probate’ refers to a range of issues and disputes that may arise after someone dies. These commonly involve disagreements among family members, beneficiaries or other interested parties about who should inherit and how the estate should be distributed. If someone disputes the validity or contents of a person’s will, or challenges the administration of the deceased’s estate, they may require a contentious probate solicitor to help them.

Some of the most common types of contentious probate disputes involve:

The validity of the will

A beneficiary may challenge a will’s validity, either by proving that it does not meet the necessary legal formalities or by arguing that the document does not reflect the true wishes of the deceased. This relies on specific legal grounds. For example, you can challenge a will on the basis that the person who made the will (the testator) lacked the mental capacity to understand the nature and effect of making a will at the time it was executed. However, you cannot challenge a will simply because you are disappointed with the contents. 

Executors or administrators

The executor named in a person’s will must manage their estate and meet several legal obligations when doing so. If they fail to communicate effectively, make decisions in the best interest of the estate and its beneficiaries or fulfil their responsibilities in a timely manner, this can lead to disputes. When someone dies without a valid will, their estate is distributed according to the rules of intestacy. Disagreements may arise about who is entitled to act as administrator in these cases.

A contentious probate solicitor can help to resolve disputes about the interpretation of executor duties, and support applications to remove or replace executors or administrators who are mismanaging the estate or causing unnecessary delays. They can also enable you to take legal action against executor misconduct involving mismanagement of the estate, conflicts of interest or failures to account for estate assets.

Errors in the will

Sometimes, a will contains clerical errors and fails to reflect the testator’s instructions, which makes it inaccurate. Beneficiaries or the estate’s executor can apply to the court to order a correction of the document. If a will is ambiguous or poorly worded, the court may be asked to interpret the testator’s intention and determine how the will should be applied. This is often a relatively straightforward type of contentious probate, and a solicitor can help to protect your interests during the process.

Trusts

If the will creates a trust or involves trust assets, disputes may also arise among trustees, or between trustees and beneficiaries. Trustees have similar legal responsibilities to executors, and disputes may arise over:

• The conduct of trustees.
• Decisions about the distribution or investment of trust funds.
• Alleged breaches of fiduciary duties.
• The need to remove or substitute trustees.

These disputes may be linked to broader inheritance issues or exist independently. A contentious probate solicitor can clarify each party’s responsibilities and assist you with the legal process to resolve your dispute.

Lack of financial provision

When certain parties are left out of someone’s will - typically close relatives and those who were financially dependent on the deceased - it is sometimes possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Where a will (or intestacy) fails to provide “reasonable financial provision” for spouses or civil partners, children and other select people, these parties can often make a claim.

Claims under the Inheritance Act do not challenge the validity of the will but seek a fairer distribution of the estate based on need and dependency. It is important to act quickly and provide strong evidence in some cases, but a contentious probate solicitor can help you to build an application and improve your chances of success.

Proprietary estoppel

If the deceased made promises that other people relied on but that weren’t reflected in their will, this may result in a proprietary estoppel claim. This is a legal principle that prevents a person (usually the legal owner of land or property) from going back on a promise or assurance they made to another person, who suffered a detriment by relying on the promise. 

In contentious probate cases, someone may claim an interest in the deceased’s property, despite not being named in the will. This applies if the property was promised to them and they spent time, money or effort - or otherwise experienced a detriment - with the expectation of receiving the property in future. The court has the power to transfer the property to a successful claimant, or offer them a lump sum payment that reflects the detriment they suffered.

What are the grounds for contesting a will?

It is only possible to contest someone’s will on specific legal grounds. A will is a legal document and the law presumes that the document is correct and reflects the testator’s intentions, provided it has been signed by the testator and the relevant formalities have been met. As such, you will also need strong evidence to back up any such challenges and have the will overturned.

The main grounds for contesting a will are:

• A lack of testamentary capacity. This means arguing that the person making the will did not have the mental capacity to understand the nature and effect of the document at the time it was made. Medical records referring to diagnosed mental illnesses, witness statements and expert opinions can all be used as evidence in these cases.
• A lack of valid execution. If the will does not comply with the formal requirements of the Wills Act 1837, it may be challenged on this basis. To be valid, a will must be signed by the testator in the presence of two independent witnesses who are not beneficiaries, and who must also sign the document. These parties do not need to be in the same physical space, as a video call can be used to witness a will, but if any of the other formalities have not been met properly, the document may be considered invalid and therefore overturned.
• A lack of knowledge and approval. The testator must know and approve the contents of the will. If you can prove that they did not, you may challenge the will on this basis. This is often relevant in cases where the testator was illiterate and relied on someone else to write the document for them, or where they had a physical disability that prevented them from reading the document. 
• Undue influence. If the testator was pressured or coerced into making the will in a way that does not reflect their true wishes, this can allow you to contest the will. This type of influence is very difficult to prove, so strong evidence is needed.
• Fraud or forgery. In very rare cases, the will may have been created or altered dishonestly, such as by forging the testator’s signature or replacing the document with a copy.

You must not only evaluate the evidence you can gather before deciding whether or not to pursue a claim of this nature. It’s also important to consider the outcome you want to achieve. If the will is overturned, a previous will may be used instead, if one exists. Otherwise, the will must be distributed according to the rules of intestacy. If you feel that unfair decisions have been made in the will or that you have not received reasonable financial provision, it is sometimes better to resolve the dispute informally or make a claim under the Inheritance Act than to challenge the document itself.

Find out more in our blog post about the legal grounds to challenge a will .

Is there a deadline for contesting a will?

Each type of contentious probate dispute has deadlines before which action must be taken, but the time limit is different in each case. Some of the relevant deadlines are as follows:

• Claims under the Inheritance (Provision for Family and Dependants) Act 1975: six months from the date that the grant of probate or letters of administration were issued.
• Challenging a will: there is no fixed statutory deadline, but claims should be brought as soon as possible. Delays may affect the case, particularly if the estate has already been distributed.
• Claims for rectification under the Administration of Justice Act 1982: six months from the date of the grant of probate.
• Proprietary estoppel or constructive trust claims: 12 years from when the right to the claim arose, although you should take action as early as possible, as delays can prejudice the case. The specific deadline may also depend on the specific facts and nature of the trust or property involved.
• Breaches of trust or executor misconduct: six years from the date of the breach, although this varies depending on the details of the case.

Speaking to a contentious probate solicitor at your earliest opportunity is the best way to make sure you don’t miss any relevant deadlines and have as much time as possible to build your case.

It’s also important to note that challenging a will can be much more straightforward if you’re able to do so before probate has been granted. In these cases, it’s possible to pause any action being taken and resolve the dispute before the estate is distributed or any decisions are made that can’t be undone. While it’s still possible to challenge a will later, it can take longer and involve difficulties like recovering assets or property, which may be expensive and deplete the estate’s funds.

Will my contentious probate dispute go to court?

Many types of contentious probate dispute can be resolved informally, by contacting the parties involved to discuss your concerns. Sometimes, a form of alternative dispute resolution may be the most suitable approach. For example, mediation involving a neutral third party can lead to a resolution quickly and cost-effectively, and deliver the outcome you want without the need for court proceedings or formal legal challenges.

On the other hand, some types of contentious probate dispute must take place in court - such as those in which a binding decision is needed on issues such as the validity of a will, the removal of an executor, or a claim for financial provision. Only the court is empowered to make these decisions. Other cases may proceed to court if the parties involved are unable to resolve the matter through negotiation, correspondence or mediation. 

Most contentious probate claims are resolved without a full trial, often through informal negotiation between solicitors or mediation. This is actively encouraged by the courts, and some disputes must proceed through an attempt at mediation before they can be escalated to court proceedings.

If a settlement is impossible or unreasonable delays persist, it may be necessary for your contentious probate solicitor to issue proceedings on your behalf. For example, if an executor is uncommunicative or does not disclose estate accounts, a beneficiary may make an informal request for information. If this is ignored, the next step may be to apply to remove or substitute the executor. The court must make a formal decision on this, and can decide to take action if there is evidence of misconduct or a conflict of interest.

Where eligible individuals claim that a will or intestacy has failed to make reasonable financial provision, and the parties cannot agree on settlement terms, they may need to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The court must consider the claimant’s needs, the estate’s size, and other relevant factors to determine whether provision should be awarded and to what extent.

The court may also become involved in cases where there are rival applications for letters of administration. Finally, if someone disputes a will on grounds such as lack of testamentary capacity, undue influence, or fraud, court proceedings will be necessary. The executor has a legal obligation to use the most up-to-date, legally valid will that the testator has produced, and the court will need to rule on whether the will is legally valid, and which version of the will should be admitted to probate, if there is more than one.

The court has wide discretion to make decisions in contentious probate matters, including the power to:

• Decide which will is valid, in cases where multiple wills are found.
• Vary how an estate is distributed under the Inheritance Act.
• Award costs and give directions on administration.
• Remove or appoint executors or administrators.
• Declare ownership of specific estate assets.

If you need decisions on any of the above matters, your dispute may escalate to the court. However, even when court proceedings are necessary, the court will encourage early resolution wherever possible. An experienced contentious probate solicitor can advise you on what to expect from the process based on your specific circumstances.

What are my options if an executor is slow and uncommunicative?

If an executor is slow or uncommunicative when administering a deceased person's estate, there are several steps you can take. The right approach will depend on the seriousness of the conduct. For example, if you are looking for clarity about when to expect your inheritance, an informal approach may be sufficient to address your concerns. However, if you suspect that the executor is engaged in misconduct in their management of the estate, or is falling short of their legal obligations, this may require a legal remedy.

Step one: contact the executor

Start by contacting the executor in writing to request an update or explanation of any concerns. Sometimes, delays may have valid reasons behind them, such as difficulties in tracing assets or dealing with HMRC. Executors are usually expected to be able to complete their duties within a year, but this can take a lot longer for complex estates. It may take 12 weeks or longer to receive a grant of probate, which must happen before the executor can begin managing assets.

If there is no response, or the delays persist, you can escalate your concerns by sending a formal letter requesting progress and a proposed timeline for completion. Keep copies of all correspondence and a record and when you sent messages to the executor, as this may be used in evidence if your case moves to court.

Step two: issue a formal request for an inventory and account

Executors must keep detailed records and accounts of the estate and any transactions they make. A beneficiary or interested party can apply to the court for an order compelling the executor to provide a copy of these accounts, to date. They can also ask for an inventory of the estate, which may indicate what decisions have been made and whether any misconduct has taken place. If the executor fails to comply with this order, it may lead to more serious consequences, alongside the possibility of legal action due to misconduct.

Step three: apply to remove or substitute the executor

If the executor is persistently failing in their duties, the next step may be to try to replace them or have them removed. You can apply to the High Court to have the executor removed under the Administration of Justice Act 1985. The court will decide based on the executor’s behaviour, the welfare of the beneficiaries, and whether or not it is in the interests of the proper administration of the estate to appoint a new executor.

You may need to provide evidence of misconduct to support your application. Misconduct that could result in an executor being removed includes:

• Misappropriating assets or funds.
• Failing to administer the estate according to the terms of the will.
• Deliberately excluding beneficiaries.
• Failing to maintain records of their decisions.
• Failing to comply with court orders to produce accounts or other documents.

Our recent blog post contains several more examples of executor misconduct and how beneficiaries can respond.

In situations where there is only one executor, it is necessary to replace them, although you can have a professional executor do this if you do not want to take on the responsibility yourself. If the will contains multiple named executors, the other parties can take over the administration of the estate.

Step four: injunctions and freezing orders

If you believe there is a real risk that the executor will dissipate estate assets or take irreversible steps, you may apply for court orders to stop them until the matter can be properly resolved. Some of the legal options that may apply include injunctions to prevent the executor from dealing with specific property, or freezing orders to stop them accessing estate funds. These remedies are usually urgent, but they still require strong evidence, so it’s vital to work with an experienced solicitor to give yourself the best chance of success.

Step five: claim for a breach of trust

Executors have a legal duty to act in the best interests of the estate and its beneficiaries. They can do this by avoiding conflicts of interest, keeping proper records and distributing the estate correctly according to the terms of the will.

If an executor breaches these duties, beneficiaries can bring a claim for breach of trust.  For example, if they are charged with selling assets, they must make sure to sell at a fair price - otherwise, they will not have acted in the best interests of beneficiaries. Claiming for a breach of trust may result in:

• Financial restitution for losses.
• Removal of the executor.
• Personal liability for the executor, if their actions amount to misconduct.

If you believe that legal action is needed to address executor misconduct or prevent them making negligent decisions that could harm the estate, speak to the team at Switalskis at your earliest opportunity, so we can get to work on your case. We’ll listen to what you want to achieve, assess the evidence, and advise you on the best course of action to deliver the outcome you want.

What are my options if I have been left out of a will?

It can be emotionally devastating to find that you’ve been left out of someone’s will, whether through an accidental oversight, a failure to update the will after you were born, or on purpose. There are a few ways you can respond.

The first is to speak informally to other beneficiaries about redistributing certain gifts or assets. Beneficiaries have no legal obligation to do this, but it’s often possible to resolve these matters informally among close friends and family members.

If you believe that the testator left you out of the will due to the undue influence of someone else, or because they were told something about you that wasn’t true, you may have grounds to challenge the will on this basis. Speak to a solicitor about your options, but bear in mind that you may not receive an inheritance even if the will is overturned, unless you were named in a previous valid will or stand to inherit under the rules of intestacy.

You can also consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain individuals to claim for “reasonable financial provision” in cases where the will or the laws of intestacy do not provide this. If you are successful, the court may vary the distribution of the estate to give you a lump sum payment, or a regular income, depending on your needs and the nature of the estate.

Only certain categories of people are eligible to bring a claim:

• Spouses or civil partners of the deceased.
• Former spouses or civil partners who have not remarried or entered a new civil partnership.
• Cohabitees or common law partners, when certain criteria are met
• Children of the deceased, including adult children and adopted children.
• Anyone treated as a child of the family (e.g. stepchildren).
• Anyone who was financially maintained by the deceased at the time of their death.

There are also differences in what is considered reasonable financial provision for each of these different parties. In most cases, it fulfils the person’s maintenance needs, rather than what they might expect to inherit - this may be more if the claimant has any physical or mental disabilities, for example. As such, it is important to build a strong bank of evidence to support this type of claim.

Find out how Switalskis can help you

At Switalskis, we know how emotional the period of grief after someone dies can be, but it’s always worse when disputes arise between family members and friends. Most disputes can be informally resolved, and we always aim to secure the best possible outcome as quickly as possible, to deliver the closure and support that beneficiaries need.

We approach contentious probate matters with a combination of legal expertise, empathy and sensitivity. Whatever you’re looking to achieve, we’ll offer practical advice to help you move forward and break down the legal jargon to make sure you understand your position at all times.

To learn more about how we can help, contact Switalskis today. Call us on 0800 138 0458 , or get in touch via the form on our website .