A guide to the most common types of Contentious Probate Disputes

What are contentious probate disputes?

Legal challenges to wills, which is to say whether they are valid and whether they can take effect, have always been brought. In fact, one of the legal tests that lawyers still refer to (to determine whether a person had the requisite mental capacity to make a will) was decided by the court in 1870 in a case called Banks v Goodfellow.

Challenging the validity of a will is just one of a number of claims that can be made against the estate of someone who has passed away.

The challenge may relate to:

• whether the formal requirements to create a will were complied with;
• The mental capacity of the deceased;
• Whether the person making the will knew of and approved the contents of it;
• Whether the deceased was unduly influenced by someone else;
• Whether their mind was poisoned by another (legally referred to as ‘fraudulent calumny’);
• Fraud.

In such cases, if a challenge to a will is successful, the previous valid will made by the deceased will take effect instead — providing that it has not been separately and validly revoked.

Types of contentious probate disputes

The definition of a ‘contentious probate dispute’ is fluid and can encompass a wide variety of disputes. Our guide below sets out the types of contentious probate disputes that can often arise: 

Capacity

A common ground for contesting a Will so that a previous Will or the intestacy rules apply. A person must have the requisite mental capacity to prepare a Will, understand what they are doing and the extent of the property which they are giving away. They need to be able to comprehend and appreciate the claims to which they ought to give effect and no disorder of the mind must poison their affections, pervert their sense of right or prevent the exercise of their natural faculties.

Creditor claims against an estate

Claims brought against the estate by people/businesses to whom the deceased owed money.

Forfeiture

A beneficiary cannot take under a Will if they have unlawfully killed the testator, or unlawfully aided, abetted, counselled or procured the testator’s death.

Forgery

Another ground for challenging a Will. It must be proven that a Will has been forged or the signature of the person allegedly making the Will has been forged, in order for the Will to be held invalid.  

Fraud

A notoriously difficult ground under which a Will is challenged. This is an intentional deception made by a person for their own gain or to damage another individual and is a claim typically brought where it is believed that a Will does not contain the testator’s true intentions.

Inheritance (Provision for Family and Dependants) Act 1975

This Act allows certain people to bring a claim against the estate of someone who has passed away where that person has not made reasonable financial provision for the person bringing the claim.

Knowledge and approval

Another ground for challenging the validity of a Will which can succeed where it can be shown that a person executing a Will did not understand and approve its contents.

Mutual Wills

Where two individuals agree on the disposal of their property and execute mutual Wills in pursuance of the agreement. In such circumstances, the survivor’s assets are held upon trust for the beneficiaries named in the Wills.

Opposing a grant

A dispute relating to the interest of someone claiming an entitlement to a grant of probate or to letters of administration.

Personal Representatives (PRs)

Claims can include claims for losses caused by PRs arising out of a breach of their duties as a PR or perhaps as a trustee. Disputes can also include applications for the delivery up of assets, testamentary documents or for the PRs to take certain steps in relation to the administration of the estate. There may also be circumstances in which claims/applications are made for a PR to be substituted or removed.

Presumed death

A declaration sought when a person has been missing and there is no evidence to suggest they are still living. Claims can also extend to seeking an order varying or revoking a declaration of presumed death.

Proprietary estoppel

Proprietary estoppel refers to a claim brought where there is a representation or assurance made to the claimant, a reasonable reliance on it by the claimant and detriment suffered by the claimant in consequence of that reliance.

Rectification

A claim brought where a Will fails to carry out the testator’s intentions in consequence of a clerical error or a failure to understand the testator’s intentions. Can often be a pre-cursor to, or pursued in mitigation of, a professional negligence claim against a solicitor or Will writer (see below).

Revocation of a Will

A person can revoke their Will in numerous ways and an act constituting a revocation can be a ground for challenging a Will. A Will may be revoked by marriage (or annulment/dissolution of the marriage), executing an instrument declaring an intention to revoke, making a subsequent Will or destruction of the document.

Revocation of a grant

Where a Will has already been proved in common form and there is an allegation that it is invalid, or that the grant should not have been made, a claim can be made for revocation of the grant.

Solicitor/Advisor claims

Examples include claims to recover losses suffered by the deceased during their lifetime, the costs of a failed or successful challenge to a Will and claims to recover a sum that a beneficiary should have received, but did not as a result of negligence.

Trust disputes

Can extend to a wide variety of disputes, including disputes between trusts, beneficiaries and trustees, actions to remove trustees or variations of trusts.

Undue influence

Establishing that the mind of the testator has been so dominated that the testamentary disposition in question is the result not of their own volition, but of that of the person exerting the influence.

Want of due execution

Another ground for challenging a Will where, under section 9 of the Wills Act 1837, a Will does not comply with a number of specific formalities.

How else might an estate be challenged?

A number of other types of claims can be made against an estate but the most common claim is for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

The Act provides for certain categories of people to claim reasonable financial provision (in most cases, but not all, sufficient to meet their maintenance needs) on the basis that a deceased’s will, or the rules of intestacy, have failed to do so.

In those circumstances, the claim is not a challenge to the validity of a will but a request that the court use the Act to vary the terms of an otherwise valid distribution of an estate.