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What is Contentious Probate?

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  • Written By: Pablo Garcia
  • Edited By: O. Wallace
  • Last Modified Date: 26 November 2016
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Contentious probate is term used in the UK to refer to a legal dispute in probate court over a deceased person’s will. The dispute could be about whether the will is legally valid or the terms of the will itself. Disputes can also arise about the way the will has been administered by its “executor,” the person appointed to carry out the deceased’s intent regarding the provisions of the will.

There are instances where a will can be invalid, regardless of what the “testator,” the maker of the will, intended to accomplish in the will. If the testator did not have the capacity to understand what she was doing at the time she made the will, then the will is invalid. The issue of capacity can involve mental illness, dementia, and other infirmities. The validity of a will made under undue influence can also be challenged. Undue influence involves circumstances like threats or coercion that cause the testator to put provisions in the will that otherwise she would not have.

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A will may also be challenged if it is a fraud, a document made by another and submitted as though it was made by the deceased. A will made by the deceased but possibly altered by someone else is also open to challenge. A will can be invalidated if it was revoked by the testator without a new will being made. When a will is not the deceased’s “last will and testament” because another will was made after it, the first will is not valid. Mistakes may also invalidate a will, as when a child of the testator mistakenly thought dead is left out of the will.

Disputes over the specific terms of a valid will are also part of contentious probate cases. These disputes often occur because “heirs,” blood relatives of the testator, believe they were wrongly omitted from the will or insufficiently provided for. In most circumstances, in the absence of fraud or mistake, a testator can leave property to anyone she chooses. Sometimes, claims of inadequate provision are entangled with claims of mismanagement by the executor of the will.

Contentious probate disputes between heirs and the executor of the will can arise for several reasons. These can be claims involving unnecessary delays in distributing the assets of the estate, not carrying out specific provisions of the will or misinterpreting them. The executor’s legal authority to administer the estate may also be challenged. A person who receives property under the will cannot also serve as its executor. Heirs and other persons who are recipients under a will may also allege professional incompetence on behalf of the lawyer who drafted the will.

In the UK, the unsuccessful party in contentious probate pays the other party’s reasonable litigation costs. There are exceptions if the claim is based on a mistake by the testator, there is legitimate confusion surrounding the meaning of terms in the will, or the circumstances raise reasonable doubts about the will’s authenticity or validity. Because of the potential costs involved, courts strongly encourage parties to attempt mediation before resorting to litigation.

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