Sometimes, we do not like to think about what will happen when we die, but we really should put things in place so that our loved ones are protected on our death; otherwise there is a greater potential for a contested probate claim against your Estate.
What is a Contested Probate Claim?
A contested probate claim is a claim which is made or levied against the Estate of a Deceased person after they have passed away. There are many different types of contested probate claims but the most common are an Inheritance (Provisions for Family & Dependants) Act 1975 claims (“1975 Act Claim”), a proprietary estoppel claim or a claim that the Will is invalid by way of undue influence or lack of mental capacity.
How does a Contested Probate Claim arise?
Having a Will does not mean a contested probate claim cannot be levied against your Estate, but it is the best way to protect your Estate and your loved ones from having to deal with a contested probate claim.
Unfortunately, even if you or your family member who has passed away have a Will, a contested probate claim could arise. The most common claims arise where a family member has not been left anything, either by way of a Will or where the Deceased doesn’t have a Will at all.
This often makes family members understandably upset and leads to a claim being levied, and in some cases brought through the Court system.
What type of Claims can be brought?
The first type of contentious probate claim can be made by challenging a Will’s validity. This can be done by challenging the way the will has been executed and signed or by challenging a Will because of:
• Undue influence – where the testator has been unduly influenced into making her Will a certain way; or
• Lack of testamentary capacity – where the testator lacked the relevant mental capacity to make the Will.
These are not the only ways to challenge, in effect, the order of inheritance. You can challenge a Will or the Intestacy Rules (the rules of inheritance where there is no Will) by making a 1975 Act Claim. These claims can be made by certain relatives or loved ones who were being financially maintained when the deceased died but are not reasonably provide for by the estate.
These claims can go hand in hand with claims for proprietary estoppel. These are claims where the deceased has promised some legacy in his/her will. The promises made have then been relied upon by the claimant to their detriment. These promises will then not have been included in the Will.
What do I do if I think I have a Contested Probate Claim?
If you think you may have a contested probate claim, the most important thing to do is get legal advice straight the way. There is not much time to bring some contested probate claims and so to protect yourself, the sooner you get advice the better. They are also extremely complex claims which almost always require you to get legal advice. Therefore if you require any further advice relating to a contested probate matter, please don’t hesitate to contact one of our offices and ask for a member of the Dispute Resolution Team.
You can learn more about our Dispute Resolution Team by clicking here.
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