What is probate?
A Grant of Probate is a formal document which allows you to deal with a deceased’s estate (assets and belongings). You do not need a contentious probate solicitor to apply for this and useful guidance is provided by the government at https://www.gov.uk/wills-probate-inheritance/applying-for-a-grant-of-representation. Only certain types of people though are entitled to apply and there may be inheritance tax payable as well probate fees.
Normally if the net value of the estate is £5,000 or less then you probably do not need a Grant of Probate to get cash transferred out of bank or building society accounts.
Is there a Will?
A person can record how they wish for their estate to be administered in a Will which is valid if voluntarily and properly executed by the deceased in the presence of two independent adult witnesses. It will only come into play once the deceased has actually died and so only the latest Will is valid (any earlier Wills will be automatically revoked).
If you do not have a Will then you would have died ‘intestate’ and your estate will then be distributed in the following hierarchical order:
1. Spouse or civil partner
6. Uncles and aunts
If you are not survived by any blood relative then your estate will pass to the Crown on your death.
Marriage and Cohabitation
A marriage or civil partnership will automatically revoke any prior Wills (unless you made the previous Will in contemplation of the marriage or civil partnership to your specific partner)
There are special tax benefits reserved for those in a marriage or civil partnership and they will automatically inherit first in line if there is no Will. This is a drastic contrast to those who are cohabiting who stand to inherit nothing if there is no Will. The concept of a common law marriage is clearly a myth and there is a real danger that people will find themselves without any legal protection once their partner dies.
How to challenge a Will
Testamentary freedom is sacred in our society so the first hurdle is always to test the validity of a Will. A Will can be challenged on a number of grounds, such as:
a) Undue influence
c) Want of knowledge and approval
e) Invalid execution
If you wish to prevent a Grant of Probate being obtained on an estate you should consider entering a ‘Caveat’ against the estate.
Inheritance Act Claims
The Inheritance Act (Provisions for Family and Dependants) Act 1975 allows certain classes of people to make a claim against the estate that no reasonable financial provision has been made for them (either within a Will or under the intestacy rules).
Any such claim must be made within 6 months from the Grant of Probate and so if you are unclear if probate has already been obtained you should conduct what is known as a standing search.
What is the current situation with contentious probate?
Putting the above into context, claims brought in the High Court in London alone has seen significant rises in the years. In 2002 the number of contested probate claim issued was 117 and for inheritance act claims it was 73. By 2015 the figure had risen to 164 and 116 respectively – and these are only a snap shot of claims that actually made it to the High Court (which tends to deal with more complicated and valuable claims).
I think there has been a more general and wide spread increase of people seeking advice and then engaging in contentious litigation over a deceased’s estate, which I believe is due to a number of factors including the change in family dynamics and make-up, a rise in property prices (which is usually the main asset in an estate) and the growing awareness of the general public arising from some high profile cases in recent years (Illot v Mitson (2017)).