Contentious Probate
"Contentious probate" is the legal term used in the UK when there is some dispute over an inheritance. Pearson Rowe is a law firm which specializes in "contentious probate" cases both through mediation and through litigation.
The action of contesting a will or objecting to probate is a specialized function which falls beyond the realm of experience for most general practice solicitors.
A solicitor who has specialised in handling contented probate has had to master the spheres of both contentious and non-contentious legal action. As a rule, UK lawyers deal either with court work – civil litigation, criminal representation, etc. – or in areas of probate law that do not involve litigated advocacy – trusts, conveyancing, etc. In order to successfully contest a will, take objection to the appointed executors or administrators, or take action against a failure to adequately execute the roll of executor, a solicitor needs to be skilled in both of the above areas and be experienced in both contentious and non-contentious matters.
A contested probate solicitor will be able to address the matter of objection to a will, where the will itself may have issues of validity, where there is a claim from someone not included as a beneficiary or who was inadequately provided for, including relatives or dependents.
Where the validity of the will is in question – a circumstance arising more and more with the prevalence of homemade and “DIY-kit wills” – a contested probate solicitor is in a position to challenge the will in a court of law on behalf of a potential beneficiary and the will may be held to be invalid if it fails to satisfy the following basic legal requirements:
• the person making the will must be over 18 years old
• it must be made without undue influence from another person
• the person making it must be of sound mind and aware of its meaning • it must be signed in the presence of two witnesses at the same time who must also sign
• a witness who is a beneficiary will lose their inheritance whilst the will remains valid
A contested probate solicitor would also be able to handle caveats to delay or prevent the appointment of specific executors; or even to remove executors or administrators whose appointment was inequitable, or whose execution of the estate has proven to be negligent or fraudulent.
Where a will has been lost, again a contested probate solicitor will, again, be able to assist in the situation. It may be possible to obtain a grant of probate, though this may be contested by the beneficiaries of an earlier will who may attempt to prove that that the missing will was in fact destroyed by, or upon the instruction of, the maker of the will and not simply lost, this being a valid revocation of the document under law. Should such a contest arise, the burden lies upon the beneficiaries of the later will to prove that the loss of the will was not an intentional revocation by its maker. Such cases require much detailed evidence to be provided, supported by witnesses or documentation, in a court of law.
Where there is some dispute over the assessment of Inheritance Tax made by the Capital Taxes Office, contested probate solicitor can assist by use of a deed of variation of the will or by representation in negotiations with the tax authority.
Should a will carry no provision for dependents, then the will can be challenged and the court can make provision for those who ought to have been provided for. Such would include spouses, partners, minors or the mentally disabled. Anyone who may validly considered to be a dependent is entitled to take legal action on the basis of the deceased having not properly discharged their responsibility towards them.
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