Contested probate (also known as contesting a will) is simply a challenge to the validity of a will.
Partly due to the explosion in house prices in the last 20 years, the value of the average estate someone leaves when they die has significantly grown in value - giving rise to disagreements about how the estate should be divided.
There can be several reasons for contesting a will including: - A beneficiary disagrees with the amount of their inheritance (under the intestacy rules in the Inheritance Act 1975 or the will itself).
The claim is brought on the ground that the deceased's dependents or family did not receive 'reasonable' financial provision from the estate.
- A professional negligence claim is brought against a professional, eg a solicitor or will writer who has negligently drafted a will.
- Disputes may arise between the executors of the will.
- The beneficiaries may wish to bring a claim against a trustee or personal representative.
- The deceased did not have a fit mental capacity when they executed the will.
- The deceased made the will under duress or undue influence.
- The will itself is fraudulent.
- The will was not validly made nor validly executed; home made or DIY wills are particularly likely to contain errors and be executed incorrectly.
- Improper alterations; eg codicils were made to the will after its initial execution.
- The will has since been revoked and is no longer legally effective.
- The will is not the last will and testament of the deceased; ie another will exists.
- The deceased's will cannot be found.
Sadly contesting a will often produces a irreparable family splits.
Before embarking on contested probate, do give serious thought to the effect this might have on your family.
What is intestacy? Intestacy occurs when a person dies without leaving a valid will; ie they have either left no will at all, or the will that they have left is invalid for one reason or another.
In this situation the law sets out certain rules on how the deceased's assets to be distributed.
The rules are stiff and often mean that property is not given out in line with what the deceased wanted.
This is of course another good reason for everyone ensuring they have a valid up-to-date will.
What are the basic intestacy rules? If the deceased left: A spouse or civil partner and children - Where the net estate is not more than 250,000 - everything goes to spouse/civil partner.
- Where the net estate is over 250,000 - the first 250,000 plus personal possessions go to the spouse/civil partner.
Half of the rest is shared equally amongst the children.
The spouse/civil partner gets the income or interest on the other half during his/her lifetime, and when the spouse or civil partner dies, the capital goes to the deceased's children equally.
A spouse or civil partner (but no children) and either parents or brothers or sisters of blood relation - Where the net estate is not more than 450,000 - everything to spouse/ civil partner.
- Where the net estate is over 450,000 - 450,000 plus half of the rest, plus personal possessions to spouse/ civil partner.
The remaining half to the deceased's parents (50/50 each); but if no parents, then to brothers and sisters of blood relation in equal shares.
Children, but no spouse or civil partner - Everything to children in equal shares.
Parent(s), but no spouse or civil partner, or children - Everything to parents in equal shares.
Brother(s) or sister(s), but no spouse or civil partner, or children or parents - Everything to brothers and sisters of blood relation equally.
- If there are no brothers or sisters of blood relation, then to half brothers and sisters.
Grandparent(s), but no spouse or civil partner, or children, or parents, or brothers or sisters - Everything to grandparents equally.
Uncle(s), Aunt(s), but no spouse or civil partner, or children or parents, or brothers or sisters or grandparents - Everything to uncles and aunts of blood relation equally.
- If there are no uncles or aunts of blood relation, then to half uncles or aunts.
No spouse or civil partner and no relatives in any of the categories shown above - Everything to the Crown.
As you'll see, these rules are very inflexible and often results in property not being distributed in line with the deceased's wishes.
This is of course another good reason for everyone ensuring they have a valid update will.
A basic will drafted by a specialist solicitor often cost as little as 150 pounds - a small price to pay for peace of mind and to avoid the heartache that often follows a contested probate case.