Contesting a Will – FAQ

What is probate?

Probate is process of the court awarding somebody the right to administer a deceased person’s estate. A Will cannot be made legally effective until probate has been granted to the executor. The process of ‘probate’ i.e. administrating the estate, involves collecting any money that is owed to the deceased, settling any debts due (including outstanding taxes) and dividing the estate amongst the respective beneficiaries.

Will I need to attend court?

A contested probate claim can be long and costly due to the amount of prior preparation needed – numerous documents maybe required, for example, to prove the deceased’s financial status. As a result of this, many contested probate cases are settled out of court by agreement.

 

If after negotiations the claim cannot be settled out of the court and if you want to proceed with your claim, legal proceedings will have to be issued which will involve you attending court.

 

What is a ‘no win no fee’ arrangement?

A conditional fee or ‘no win no fee’ arrangement is an agreement made between you and your solicitor before taking on a case. If you are successful in your claim under a no win no fee scheme, then the fees charged by your solicitor (plus an additional ‘success’ fee for taking on the case with a risk of not being paid) are covered by the other side. If your contested probate case fails then you do not have to pay your solicitor.

 

Do I need to meet face to face with my solicitor?

No. Most contested probate solicitors are happy to deal with these types of cases via email, post and phone. If however you do want to discuss your claim face to face then a good solicitor should always be able to arrange an appointment for you.

 

What happens when there is a lost Will?

When a Will has been lost the executor of the estate may attempt to apply to the High Court with a copy of the Will i nstead of the original. Using this, they should then be able to grant probate.

Beneficiaries whom do not benefit under this copy of the Will (provided by the executor) sometimes challenge this action i.e. where they benefited under a different version.

 

The beneficiaries will seek to prove that the original copy of the Will (as provided by the executors) was destroyed by the testator and is therefore invalid. If they are successful in doing so, they may be able to prove that the earlier Will is valid and they do benefit.

Contesting a Will is a complex matter and inevitably detailed evidence supported by witnesses and documentation will be necessary to prove any claims made

 

How do I search for a copy of a Will?

You can write to the York Probate Sub-Registry for a copy of any Will by post. You must provide the forename(s), surname, date of death and the last known address of the deceased. The York Probate Sub-Registry will pass any requests onto the probate registry keeping the Will and grant of probate, which will send the required copies direct to the individual.

 

The address to write to, for deaths in England and Wales, is:
The York Probate Sub-Registry
1st Floor
Castle Chambers
Clifford Street
York YO1 9RG

Tel: 01904 666777

A fee of £5, which pays for the search and one copy of the Will and grant of probate, should be sent with each application. Fees should be paid by crossed cheque or postal order made payable to Her Majesty’s Court Service

 

What is a life interest?

A life interest is a legacy or asset left for someone for the duration of his or her life. The interest is then transferred to someone else after they die.

 

The left over from a life interest is also known as a ‘reversionary interest’ or an ‘remainder interest’. A typical example is if you leave your house for your partner to live in for as long as they are alive, when they either give up the property or die, it is sold and the money goes to whoever was left the remainder interest i.e. the children.

 

What is contentious probate?

Contentious probate is another expression for contested probate or contesting a will. A will challenge or contest is a challenge to the validity of a Will – which can be for a number of reasons including

  1.  The Will itself is invalid
  2. The Will did not make “reasonable financial provision” for the surviving dependents
  3. Disputes about the actions of executives or trustees
  4. Professional negligence claims against a solicitor or will writer in incorrectly drafting the Will

 

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