Our Guide to Contentious Probate

Contentious Probate

In usual circumstances, a legal document known as a will ensures that the property, money and other assets of the testator – the person who made the will – will, upon the testator’s death, be distributed in accordance with their wishes. However, it is possible for a will to be contested following this death, and this is where the issue of contentious probate comes in.

The possibility of contentious probate

Should you die having not made a will, your assets will be distributed in adherence to the rules of intestacy. This manner of distribution may, however, not meet your own wishes – and could even lead to a dispute over inheritance. It is, therefore, in your family’s interest for you to ensure that your will is correctly drafted and executed.

You can reduce the chances of your will being challenged following your death by having that will drafted by a solicitor. There are especially good reasons to seek assistance from one of our solicitors at Ronald Fletcher & Co. in making your will. However, there remain various ways in which a will could be contested – and you could benefit from knowing these, whether you are currently preparing your own will or want to challenge someone else’s.

Good reasons why the validity of a will could be challenged

A will could be deemed invalid if it has not been executed correctly, or it cannot be established that it takes genuine account of the intentions of the person who made the will. Should a will indeed be declared invalid, the estate will be distributed according to the terms of the most recent valid will. If there is no valid will, the intestacy rules will prevail.

However, none of this will occur unless the original will is successfully contested. Therefore, on what grounds could a will be challenged? Below are a number of examples – and we can inform you of others, should you seek our help in legally objecting to a dubious will.

Lack of testamentary capacity – The testator must have “sound mind, memory and understanding” when making their will, and so genuinely understand the document’s content. This includes comprehending the nature of their act and its effects.

Undue influence/coercion – A will can be contested if the testator was, when making the will, subjected to undue influence, i.e., the document did not include the testator’s genuine intentions, as its contents were influenced by the pressure of a third party.

Lack of knowledge and approval – If the circumstances around a will’s execution are suspicious, but there remains insufficient evidence of undue influence, the Court must be satisfied that the will’s contents were understood and approved by the testator.

Not in compliance with section 9 of the Wills Act 1837 – The terms of this part of the Act are detailed in an article about contentious probate on the Edge Magazine website.

Forgery or fraud – The above article also describes situations in which forgery or fraud could be proven in a will and so that will would be declared invalid.