Contentious Probate: What Happens When a Will is Contested?

It’s a familiar scene in films and TV dramas: the family gathered in a wood-panelled office for the reading of a will, only for stunned silence (or heated arguments) to follow when the inheritance isn’t what anyone expected.

But while Hollywood may exaggerate, disputes over wills and estates, known as contentious probate, are increasingly common in real life. Rising property prices, blended families, and complex financial arrangements mean more estates are being challenged.

So, what does contentious probate actually mean, and in what situations might you have grounds to contest a will?

What is Contentious Probate?

Contentious probate refers to disputes about how a deceased person’s estate is administered. While some disputes are based on technicalities in the drafting or execution of a will, others stem from family circumstances where someone has a legitimate claim for financial provision. This can involve:

• Challenges to the validity of a will
• Disagreements over how assets should be divided
• Claims by family members or dependants who feel they have been left out or inadequately provided for

Can a Will be Contested?

Evidence needed to contest a will can include:

• Fraud or forgery – the will is not genuine
• Lack of mental capacity – the deceased did not fully understand what they were signing
• Undue influence – someone pressured or coerced the deceased into making the will
• Failure to execute properly – the will wasn’t signed or witnessed correctly
• Lack of knowledge or approval – the deceased didn’t fully understand the contents of the will

Even if the will itself is valid, you might still have grounds for a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Claims Under the Inheritance Act

The Inheritance Act allows certain individuals to apply to the court if they believe they haven’t been left “reasonable financial provision.” A key ruling is the real-life case of Ilott v Mitson. A mother left her entire estate to several charities, excluding her estranged daughter of 26 years. The daughter successfully claimed under the Inheritance (Provision for Family and Dependants) Act 1975, eventually being awarded £50,000 by the Supreme Court. It was a landmark case that showed how the courts balance testamentary freedom with fairness for dependants.

You may be eligible if you are:

• A spouse or civil partner
• A child or stepchild
• A former spouse or civil partner
• Someone who lived with the deceased for at least two years before their death
• Someone who was financially dependent on the deceased

These claims can apply whether there is a will or the person died without one (intestate).

Keeping Disputes Out of Court

In practice, most contentious probate disputes don’t go all the way to a trial. Not only are court cases stressful and costly, but they can also cause lasting damage to family relationships.

That’s why courts encourage Alternative Dispute Resolution (ADR), particularly mediation. In mediation, a neutral mediator helps the parties negotiate a settlement. It’s confidential, often quicker, and usually less expensive than a court hearing. Importantly, if mediation is successful, the resulting agreement is binding.

If ADR fails, the dispute may still need to be decided in court, but the preference is always to resolve matters amicably where possible.

How Long Have You Got to Contest a Will?

It’s crucial to act quickly. Claims under the Inheritance Act must usually be issued within six months of the Grant of Representation being issued.

That means if you think you may have a claim, you should seek legal advice without delay.

Legal Costs

In probate disputes, the general rule is that the losing party pays the winner’s legal costs. In some cases, costs may come from the estate, but this is not guaranteed. Courts have wide discretion and will consider the conduct of all parties when making cost orders.

This is another reason why early advice and a pragmatic approach to settlement can be so valuable.

Preventing Future Disputes

If you’re making your own will and want to minimise the risk of disputes after you’re gone, there are steps you can take:

• Keep your will up to date – especially after major life events (marriage, divorce, children, house purchases)
• Use a solicitor – homemade wills are more prone to errors and challenges
• Be clear about your wishes – consider writing a “letter of wishes” to explain your decisions
• Communicate with your family – difficult though it may be, open conversations often prevent misunderstandings later

Speak to the Experts

Contentious probate is often emotionally charged and legally complex. At Thorneycroft Solicitors, we have the expertise to guide you through the process, whether you’re contesting a will, defending a claim, or planning your estate to avoid future disputes.

Get in touch with our team today to discuss your situation in confidence.

Article written by Laura Collins – Wills & Probate Solicitor at Thorneycroft Solicitors