By Nicola Mitchell-Rodd, Senior Associate, Contentious Probate and Trusts.
When someone dies, their estate will be administered and distributed in accordance with their Will. Where there is no Will, the estate is dealt with under the intestacy rules.
The individuals with the legal authority to carry out these tasks will either be nominated by the deceased in their Will (executor), or, if there is no Will, the person with a statutory entitlement to apply to act as administrator. It is a common misconception that a partner or child is automatically entitled to take on this role. Whereas, the order of priority is in fact found in Rule 22 of the Non-Contentious Probate Rules 1987.
Most estates are administered without any contentious issues arising. However, when a legal dispute arises in relation to an estate or trust, it is often referred to as Contentious Probate. In this article, we will explore the different types of Contentious Probate cases which arise and elaborate on the key points to consider.
Common Contentious Probate Issues
There are a variety of different probate and trust actions that can arise during the administration of an estate or trust. The most common matters our Contentious Trusts and Probate team deals with include:
- Challenging the validity of a Will - including issues concerning mental capacity, undue influence and fraud.
- Concerns about executor conduct - often delay, conflicts of interest or breach of duty.
- Trust disputes - such as breach of duty, endangering trust funds or not acting impartially.
- Applying to remove an executor or trustee - and/or asking the Court to appoint an interim or replacement independent executor or trustee.
- Claims for financial provision - under the Inheritance (Provision for Family and Dependents) Act 1975.
- Lifetime gifts and transactions
- Negligence
- Proprietary estoppel
- Burial disputes
Who Can Make a Contentious Probate Claim?
Anyone with a valid interest in an estate or trust can potentially bring a claim. This could include:
- Family member
- A beneficiary or potential beneficiary
- A beneficiary under a previous Will who has been excluded
- Eligible individuals who were financially dependent upon the deceased and have not been provided with financial provision from an estate.
How are Contentious Probate Disputes Resolved?
Each case is different and will be dealt with on a case-by-case basis. Our team can help by:
- Identifying whether you have a basis for a claim or a defence to a claim being advanced against you.
- Undertaking initial investigations and obtaining any supporting evidence which may be required, i.e. medical records or Will files.
- Assessing the strengths and weaknesses of the case.
- Drafting appropriate documentation and correspondence.
- Engaging in pre-action correspondence before the commencement of proceedings.
- Exploring whether a resolution can be reached through negotiation or formal Alternative Dispute Resolution (ADR), such as mediation.
- Issuing a claim (or responding to a claim) through the Court where necessary.
- Complying with the directions issued by the Court to prepare the case for trial.
- Attending trial and dealing with any post-trial matters, such as costs.
How We Can Help
If you have concerns about the administration of an estate or trust, or you are facing a claim, legal advice at an early stage will enable you to understand your position, protect your interests and explore the most appropriate route to resolve the matter. Our specialist Contentious Trusts and Probate team is here to provide you with the support you need.
Please contact Nicola Mitchell-Rodd if you would like to discuss your circumstances:
Telephone: 01258 444814
Email: nicola.mitchell-rodd@blanchardsbailey.co.uk
Locations: Dorchester, Weymouth
So, how can we help?
Whatever your requirements, our team is standing by.
Call us today on
01258 459361