Contentious probate disputes – beyond will validity

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Woodfines

In this month’s column, Hannah Johnson, Senior Associate at Woodfines Solicitors looks at contentious probate disputes.

When we consider disputes in relation to estates or inheritance, often we think of challenges to the validity of a will.

I often advise as to the grounds upon which a will could be declared invalid should the challenger be able to present sufficient evidence to the court in support of their case.

However, far from all probate disputes will involve a challenge to the validity of a will. The following are just some other situations where a specialist solicitor’s assistance might be sought;

  • You are the beneficiary of an estate. The executor of the estate is failing to make any progress in dealing with the estate. Perhaps the estate comprises a property which should be sold in order for the proceeds to be distributed, but the executor is not getting on with this, either for no discernible reason or because he or she is deriving a benefit from the delay. You may have to take action against the executor to force the sale of the property. If you are the sole beneficiary of a property, you could make an application to enforce the executor to assent (transfer) the property to you.
  • You are the executor of an estate, alongside another. You believe that your co-executor is conflicted from acting in the best interests of the beneficiaries. Perhaps the estate includes a property which must be sold, but your co-executor is currently living there rent-free. Should your co-executor refuse to act for the benefit of the estate, you could apply to the court for an order that he or she be removed from their position on the basis they have a conflict of interest. If the court agreed that the removal was necessary, you could then proceed to carry out your role without obstruction.
  • You are the executor of a will to which there has been suggestion of challenge but no formal case raised. A caveat has been entered against the estate to block the will being admitted to probate. A “warning” to the caveat has only prompted the challenger to make the caveat permanent by entering an “appearance”. As a caveat sealed by appearance can be removed only by agreement or by the court, in the absence of agreement you may have no choice but to apply to the court to admit the will “in solemn form”. This is a request that the court recognise the validity of the will and allow probate to be granted. The challenger may defend the application and argue invalidity, but they would then have to prove this – and at least the matter would have been brought to a head and within the remit of the court.

For further help or advice, please contact Hannah Johnson at hjohnson@woodfines.co.uk

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