What is Contentious Probate?
Contentious Probate is a dispute that concerns how a deceased person’s Estate (everything they owned at the time of their death) should be managed or distributed. This could relate to many areas, such as:
- A dispute over the value of a person’s assets
- Differences of opinion over the interpretation of a Will
- Dealing with difficult Executors
- Challenges to a will on various bases, including capacity, undue influence
In truth, the traditional view that a person will marry once, have children and never divorce doesn’t reflect many people’s actual experiences. Life can be much more complicated, so it’s likely that as modern trends in family life evolve, we’ll see an increase in contentious Probate in the future.
What Could Happen?
If you're not married, but in a happy, cohabiting relationship, with children, there may be problems on the death of either partner. This is especially true when someone dies without making a Will. This type of relationship doesn't provide much security for the surviving partner, since the inheritance rules governing the distribution of their Estate, called the Rules of Intestacy, will ignore them. And that’s one reason why making a Will is so important.
If you’re left with nothing after a loved one has died because of the intestacy rules, and you can reasonably expect to have been provided for, you can make a claim against the Estate.
If you've previously been married, and had children in that marriage, that makes matters even more complex, compared to people who’ve only been married once. When you get divorced, the effect on your existing Will is that the divorced spouse is written out of the Will as if they died before you. This means a former spouse doesn’t automatically inherit.
However, there are circumstances where they might be able to claim, such as:
- If the former spouse didn't remarry
- If there was only a separation, rather than a divorce
The increase in the number of people suffering from dementia and other degenerative conditions is also making contentious Probate disputes over a family Estate more common. Dementia causes problems with the validity of a Will as it raises the question of whether they were in a position to make the Will at all.
A person is deemed to have the mental capacity to make a Will if they:
- Understand the nature of a Will and the effects it will have
- Understand what they're giving away in the Will
- Understand who may expect to inherit and show that they've considered this
- Have no mental disorder, which could affect their ability to make a Will
If there are any doubts about mental capacity, a Capacity Statement will need to be obtained, either from a Solicitor, a medical professional or a long-standing family friend who isn’t a named beneficiary of the Will.
How Simpson Millar Can Help You
Part of your motivation behind writing a Will may be to make coping with your loss easier for friends and loved ones. So the last thing you want is for the Will itself to cause problems after your death, and potentially cause disputes among those you love the most.
Our Wills and Trusts Solicitors can help you draft a Will to make it more resistant to challenge, so it genuinely promotes your wishes and best interests and benefits those you wish to leave a gift to.
For free legal advice call our Probate Solicitors
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