Contentious Probate

Contentious Probate is a wide-ranging term and includes any dispute involving a deceased’s estate. A few examples include:

• A dispute in regards to the validity or interpretation of a deceased’s Will;
• A dispute between the executors and beneficiaries in respect of the administration;
• A dispute over the deceased’s place of burial;
• A dispute over the value of the deceased’s assets; or
• A claim brought by a third party against the deceased’s estate for financial maintenance.

Probate means proof of a genuine and valid Will as authorised by the Court (in the UK this is the Probate Registry) to a Personal Representative allowing them to administer the estate of a deceased person.  This authority is given by issuing a Grant of Representation.  In the case of an executor, the Grant of Representation is called a Grant of Probate and in the case of an administrator it is called Letters of Administration.

In order to prevent the issuing of a Grant, you will need to lodge a caveat against the deceased’s estate at the Probate Registry.

A caveat prevents a Grant of Probate or Grant of Letters of Administration (i.e. when the deceased left no Will) from being issued by the Probate Registry.  It will remain in place for an initial period of six months unless it is removed or the caveat is extended.  There is a small fee of £3.00 which is paid on entering or renewing a caveat.

It can often be difficult to obtain a copy of a Will as it is a private document.  During the lifetime of your loved one, you will only be able to see a copy if they provide consent.

Following their death, the deceased’s executors or personal representatives are able to obtain a copy of the Will in order to administer and distribute the deceased’s estate.  It is their decision as to whether to share a copy with you.

Once a Grant of Probate is issued, the Will along with the Grant itself become public documents.  These documents can be accessed by anyone for a small fee from the Probate Registry.

The deceased’s executors or personal representatives do not have to inform you once they have applied or received the Grant.  You can enter a standing search at the Probate Registry for a small fee which will remain in place for six months.  If the Grant is issued during this period, the Probate Registry will notify you of this.  Similarly to a caveat, you can renew a standing search.

An executor is appointed by the person who has passed away to oversee the managing of their estate, when a valid Will exists.  In most cases, this role is taken by a close family member or friend or probate solicitors.  The intended executor of a Will is usually revealed before the writing of a Will.  If this does not happen, in most cases the identity of the executor will be written in the Will.

An administrator is responsible for managing the estate when there is no Will or the Will does not name an executor or the executor has abstained from their role.  Only in these circumstances where there is no executor will an administrator take up the responsibilities of the executor.

The following persons may apply to become an administrator, in order of priority:

• The spouse or civil partner of the deceased
• A child of the deceased
• A grandchild of the deceased
• A parent of the deceased
• A brother or sister of the deceased
• A nephew or niece of the deceased
• Another relative of the deceased

These people are the ones capable of inheriting under the laws of intestacy and if there are none of these then the estate will pass to the Crown.

Executors and administrators are both known as Personal Representatives of the deceased.

Executors and Administrators both have a number of duties and responsibilities which they must fulfil as part of their role. These include:

• Applying for the Grant of Probate or Letters of Administration (if required)
• Collecting in the deceased’s assets
• Valuing the deceased’s assets
• Settling any outstanding debts or taxes owed by the deceased
• Preparing estate accounts which include all assets and liabilities; and
• Distributing the estate in accordance with the deceased’s Will.

An executor can be removed if there is good reason for their removal.  The Court will always consider whether their removal would be in the best interests of the estate.

The following examples may justify an application for their removal:

• They cannot be located and is not performing their duties
• They sold the deceased’s property at a deliberate undervalue
• They made distributions to the beneficiaries before settling debts
• They are of ‘bad character’ (i.e. they have been convicted of a crime)
• They have carried out serious misconduct (i.e. stealing funds from the estate)
• They are unable to perform their duties due to a physical or mental disability
• There is a conflict of interest.

Depending on the concerns, the Court has the ability to order that an executor is personally liable to reimburse the estate for any losses caused by their actions.

This depends on the type of claim you wish to pursue and can be complicated, therefore we would recommend that you seek Andrew and Andrew Solicitors’ legal advice as a matter of priority.

If you intend to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 you will need to issue your claim within six months of the Grant being issued.

At Andrew and Andrew Solicitors, we pride ourselves on the use of Alternative Dispute Resolution (ADR) as a source of resolution in as many cases as possible.  Most disputes can be resolved by negotiation or by the attendance of a mediation, for example.

In the unlikely event that we are unable to reach an amicable resolution with the other parties, we will guide and support you through the Court process.  We will always do our best to achieve a fair outcome for you.