Contested probate: Can anyone challenge it? Who decides what happens? Your questions answered

What do you need to know about contested probate? Julia Fenton and team answer your questions. Supplied picture.

Julia Fenton, Associate Solicitor at Morrish Solicitors explains more about what you can do if you’re considering challenging a will.

Fenton says: “A contested probate case can come about for a number of reasons, but most commonly when someone feels they have been treated unfairly. We frequently receive enquiries from disappointed people who think they should have been left something (or more), in a will.”

When this happens, a claim can potentially be brought under the Inheritance Act, as long as the person fulfils certain criteria.

Important facts when considering a contested probate claim

Firstly, be aware that there are time limits. A claim under the Inheritance Act must be made within six months of the date of the grant of probate/letters of administration.

Also, only certain people can make a claim. Fenton adds: “The categories of claimant are quite specific: the spouse/civil partner of the deceased; a person living with the deceased ‘as husband or wife’ for at least two years prior to their death; a child of the deceased — or someone treated as a ‘child of the family’ — such as a foster- or step-child; or a person who was maintained by the deceased.”

It is also worth bearing in mind that there are different types of award. The court can make a range of different orders, such as a lump sum to the successful claimant, periodical payments from the estate, or the transfer of property from the estate.

Fenton continues: “In most cases, for a case to be successful, the applicant will need to prove they have a financial need for maintenance from the estate. Spouses or civil partners however aren’t restricted to an award for maintenance and they don’t have to show need or dependency to make a successful claim.”

How does the court decide?

There are a range of factors including: the size of the estate; the financial status of the competing beneficiaries; the health of any claimants; and any obligations the deceased had towards the claimants. The court’s test is objective though and aims to achieve a fair result — which might not necessarily be in line with the testator’s wishes.

What about legal fees?

The usual costs rules apply if a case reaches trial, with the loser paying the winner’s costs. If a case settles before trial, the parties can come to an agreement in terms of costs, such as each paying their own, or taking them from the estate.

Fenton adds: “We offer an initial fixed fee appointment with one of our solicitors to discuss your case for £250 plus VAT. Once we have assessed the potential claim, we can offer a variety of funding arrangements including ‘no win, no fee’ and deferred fee agreements — where payment is made at the conclusion of the case and therefore fees can be paid from the estate.”

Is there a better way than going to court?

Both courts and lawyers are strong supporters of mediation or other forms of dispute resolution in these types of cases. Mediation is flexible, cost effective and quicker than litigation. Fenton concludes: “Mediation works well in this type of case where it is in everyone’s best interests to keep costs down and maximise the amount left in the estate; and of course, to resolve the case quickly.”

Morrish Solicitorsdispute resolution services can be provided in-person, over the phone or by email or post. If you would like more information on contested probate, mediation, or any other type of dispute resolution, contact [email protected] or call 033 344 9600. Alternatively, you can make an appointment at their head office in Leeds city centre, or one of the branches located at 51a High Street in Yeadon and at 9 Lowtown in Pudsey.