It is a broad term that covers any dispute arising out of a deceased’s estate. A number of different factors, such as increased values in property, an ageing population, and increased numbers of blended families, contribute to a ‘perfect storm’ when someone dies which has led to a year-on-year increase in the number of probate and succession disputes in the UK.
Types of contentious probate disputes include:
- Mistakes in Wills
- Challenges to the validity of Wills
- Claims for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975
- Missing or lost Wills
- Proprietary estoppel
- Claims against personal representatives (executors/administrators) and trustees
- Death-bed gifts
Mistakes in Wills:
Often these arise out of homemade Wills. We see on average 8-10 of these a year where it is not entirely clear what the testator intended, including, for example, identification of beneficiaries (e.g. charities called by the wrong or incomplete names).
If there is a clerical error, then the Will may be rectified by the Court. Rectification claims must be brought within six months of the date of the grant of probate.
If it is a question of ‘what does the Will mean?’, then an application to construe (i.e. interpret) the Will may be necessary. There is no time limit to bring a construction application but certain things, like delay or acquiescence in a prior distribution, may prevent a claim being wholly or partly successful.
Sometimes, a mistake may arise in a Will drafted by a professional, in which case there may be additional claims in negligence against the draftsperson in order to recover the costs of rectification/construction claims from the professional’s insurers.
Challenges to the validity of Wills:
This is an area ripe for dispute, particularly if there are concerns about the testator’s capacity or if they were vulnerable to undue influence (pressure or coercion that goes beyond simple persuasion or appealing to their generosity). Recent cases in the press have focused on ‘predatory marriages’ and, in the 2024 decision of Langley v Qin, the deceased’s daughter succeeded in setting aside a Will made by her 94-year old father two months before he died giving his entire estate to his 54-year old Chinese wife whom he had married 11 months earlier.
A challenge may also be brought if there are concerns about the testator’s awareness of what they signed (‘want of knowledge and approval’) or the signing of that Will (‘want of due execution’). There are strict formalities required for the valid signing of a Will and, if these are not met, the Will may be set aside.
If a beneficiary witnesses a Will, that will invalidate the gift to them and they will not inherit.
Forgery or fraud may also give rise to a challenge to a Will, although these instances are relatively rare.
One of the first steps when deciding whether to challenge a Will is to write to the person who drafted the Will and ask for evidence about the circumstances surrounding the drafting and execution of the Will and, if available, a copy of the Will-file. This is commonly referred to as a ‘Larke v Nugus’ letter and we have found that quicker, better results can be achieved when these letters are sent on solicitors’ headed paper and this may lead to earlier resolution of disputes without the need for costly litigation in Court.
Inheritance Act claims:
Under the 1975 Act, certain categories of people have a right to bring a claim if they did not receive anything under a Will or intestacy (when someone dies without a Will) or if they feel they did not receive enough. These categories include:
- spouses and civil partners
- former spouses and civil partners who have not remarried/entered a new civil partnership
- cohabitees
- a child of the deceased (including adult and adopted children) and anyone ‘treated as a child of the family’ (includes stepchildren)
- anyone who was being maintained by the deceased.
These claims are highly fact-specific and it is important to get advice at the earliest opportunity because there is a time limit of six months from the date of the grant in which to bring the claim. The Court may extend this time-limit but this will add another layer of uncertainty, complexity and costs to the claim.
Missing or lost Wills:
Thorough searches may be needed to track down a Will. If an original Will cannot be found but a copy is available or it is possible to reconstruct a copy, then it may be possible to get a grant based on that copy or reconstruction. There is a strict procedure for this and a lot of evidence will have to be compiled setting out the searches carried out, the persons consulted (e.g. anyone who might have inherited if there was no Will) and the grounds for the application. This can give rise to disputes between people who would inherit with the copy Will and those who stand to inherit if there is an intestacy (i.e. no Will).
If the testator had the original Will in his possession before he died and it cannot be found after his death, there is a ‘presumption of revocation’, i.e. that he destroyed the Will with the intention to revoke it. This is ‘rebuttable’ which means evidence may be put forward to show the testator did not revoke the Will. Again, this is fact-specific and it is important to gather evidence at an early stage and to notify the potential claim to all relevant parties.
If a Will cannot be found and it is not possible to find a copy or reconstruct one, the estate will have to be administered under the intestacy rules, which may not be in line with the apparent wishes of the deceased.
Proprietary estoppel:
It is not uncommon for a family member, friend or employee to say that the testator promised them something when they died. If the Will does not reflect that promise, the person to whom the promise was made may bring a claim to enforce the promise. They will have to prove three things: (1) the promise; (2) reliance; and (3) detriment. These sorts of claims often arise in relation to farms and family businesses where a family member or employee has worked for little or no money in reliance upon the promise that they would inherit land or property, but they can arise in other situations too. Again, this is highly fact-specific and it is important to gather evidence and get advice as soon as possible.
Claims against personal representatives/trustees:
“Personal representative” is the umbrella-term for executors (persons appointed under a Will) and administrators (persons appointed by the Court to deal with an estate when there is no Will). While the estate is being administered, the personal representatives are ‘in charge’. Once all the liabilities have been paid and it is possible to work out what is due to the beneficiaries, the personal representatives may become the ‘trustees’ of the residue (i.e. their role changes). Sometimes different people are named as trustees in the Will.
If the executor/administrator or trustee is failing to fulfil their duties, it is open to any person interested in the estate to take steps to either force them to do what should be done or to remove them from that position. Common scenarios include:
- unexplained delay in the administration of the estate or distribution to beneficiaries
- disputes over the amounts being distributed
- misappropriated assets
- failing to act quickly to recover or realise (sell) assets and causing a loss to the estate
- failure to investigate lifetime payments (e.g. ‘gifts’ by attorneys to themselves) or to recover them
- disagreements about funeral arrangements
- conflicts of interest (e.g. if an executor wishes to buy an asset from the estate at an undervalue)
- failure to provide any or sufficient information to beneficiaries
- a breakdown in the relationship between the personal representatives themselves (e.g. siblings who disagree on how to administer the estate or whether money paid by the deceased to one of them was a gift or a loan)
Death-bed gifts:
While these are relatively uncommon, if someone says the deceased gave them a gift on their death-bed, which is not reflected in the Will or under the intestacy rules, the law is quite strict about when these gifts will be valid and it is worth investigating the circumstances of the alleged gift. In order to be valid:
- the person making the gift must contemplate his impending death
- the gift must be clearly conditional upon that person’s death actually occurring; and
- the person making the gift should deliver ‘dominion’ (control) over the subject matter of the gift.
Again, this is highly fact-specific and it is important to get advice as early as possible, whether you are the person claiming to benefit from a death-bed gift or if you wish to challenge one.
ADR:
Not all roads lead to Court. Litigation is extremely expensive and the fall-out for individuals on their health and wellbeing and on their family relationships can be underestimated when dealing with contentious probate disputes. There are different ways in which these disputes can be resolved, known as ‘alternative dispute resolution’. Sometimes this is settled in correspondence, other times there may be a round-table meeting which can be very informal or could be a formal ‘mediation’ with an independent person (usually a lawyer) appointed to act as the mediator. Arbitration (a non-Court judgment that is binding on the parties) may also be an option.
The advantage of ADR is that it is confidential and cheaper than litigation. If parties do not try and settle matters prior to going to Court, they may be sanctioned in costs (e.g. ordered to pay the other side’s costs or be unable to recover their own costs even if they are successful in their claim).
There is no set protocol for dealing with contentious probate disputes but we recommend looking at the ACTAPS (Association of Contentious Trusts and Probate Specialists) Code of Conduct for guidance on sensible ways to approach and deal with these types of disputes.
To discuss this, or any other related matter with Kerry directly, please call 01483 887766, email info@hartbrown.co.uk or start a live chat today.
*This is not legal advice; it is intended to provide information of general interest about current legal issues.
