Monday, December 7, 2009

What Are Contested Probates?

When someone dies leaving a will the estate will usually go to probate. This means that those individuals named in the will as the deceased's personal representatives will have to obtain a Grant of Probate from the Probate Registry. This document will give them the authority to deal with the deceased's affairs and administer the estate according to the terms of the will.

But this is not always as straightforward as it should be. Circumstances may come to light which mean that the estate cannot be dealt with in the way the deceased intended. There are two particularly common issues which are increasingly giving rise to contested probates.

Firstly, contested probates often arise where the testator (the person making the will) was not mentally capable of making a will. The law sets out guidelines which the testator's legal representatives should follow when taking instructions and executing a will where the testator's mental state causes concern. These include keeping careful notes of the testator's mental state at the time and asking their GP to give an opinion as to whether or not they had the mental capacity to make a will.

If probate is contested on the basis that the testator was not mentally capable of making a will, all such evidence will need to be produced to the court. There may be family members that can also give statements about the testator's mental capacity which can help resolve the issue.

Secondly, an individual who is not a beneficiary under the will might lodge a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial support out of the estate. This might be a co-habitee, a disabled adult or a close friend who relied on the deceased for financial support. This situation may arise where the will does not make adequate provision for a dependant.

Unfortunately, because of the litigious nature of such claims, they cause substantial delay to the distribution of an estate and beneficiaries will have to wait much longer than they otherwise would for their inheritance. In addition, the value of their inheritance will almost certainly be reduced because the legal costs incurred in defending any such claims will come out of the estate funds.

Fortunately, the majority of probates are straight forward but be aware that this is not always the case.

To minimise the risk of a contested probate it is recommended that your Will is kept up to date and that you tell your family of your intentions with regard to your estate and to help deal with probate fees.

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