Contentious probate

What is contentious probate?

Losing a loved one is devastating.  But discovering that they failed to adequately provide for you, or someone else close to you, makes matters even more difficult to deal with.  Whilst we are generally free under the laws of England and Wales to dispose of our assets on death as we see fit, this can be varied if the deceased lacked capacity at the time of making their will (for example because they were suffering from dementia or did not fully understand what they were doing or the extent of their estate) and/or under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 (the “Inheritance Act”).  In Inheritance Act cases it is open to the Courts to make further financial provision for those who:

  • have not inherited as a result of intestacy (where there is no will);
  • have been left out of a will entirely; or,
  • have not been left as much as the Court considers they should have.

Contentious probate is the process used for seeking an entitlement from a deceased estate, when you have either been left out or not adequately provided for.

Who can bring a contentious probate claim?

  • the surviving spouse, i.e. the husband or wife of the deceased, or civil partner of the deceased;
  • a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership, for example an ex-husband who lives with a new girlfriend but has never married them may claim;
  • any person who during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased as if they were the husband or wife, or the civil partner, of the deceased. This would include long term girlfriends or boyfriends but only if they lived together.
  • a child of the deceased. This does not only include children who were brought up by the deceased as we will see on our case studies page;
  • any person (not being a child of the deceased)who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family.  This would include step children but could also include, for example, foster children or those subject to a special guardianship order;
  • any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased. For the purposes of this provision, “maintained” means payments in money or money's worth towards the reasonable needs of that person.  This is clearly a very broad category and could include close friends, more distant relatives or anyone who is found to be factually maintained. 

This is clearly quite a broad cross section of people who may be entitled to make a claim for a share of the estate of the deceased.  It has recently also been confirmed that, except for in relation to the last category, it is not necessary for the party who is thinking of making a claim to have actually been supported, financially or emotionally, by the deceased prior to their death.  The Court of Appeal has confirmed that a child of the deceased was entitled to a significant share of her mother’s estate even though they had been estranged for many years and the mother did not approve of her at the time of her death.

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