Contentious Probate

Introduction

At P.A. Duffy & Co. we understand how challenging and overwhelming it can be in the aftermath of the death of a loved one, especially when things unfold which were not planned.

Our expert probate solicitors make every effort to support our clients when dealing with Contentious Probate cases, by providing clear advice in a sensitive and personal manner, whether they are bringing the claim or defending it. 

What Is Contentious Probate?

The term Contentious Probate refers to inheritance claims and legal disputes which occur when the Estate of a deceased person is being distributed to those entitled to it under the Will or the Intestacy Rules.

Our expert Probate Solicitors have identified that inheritance disputes commonly arise when the following occur:

• Someone is not left an asset or assets in the Will that they reasonably believed would be left to them or perhaps were ‘promised’ to them;

• Someone believes that the Will was not executed properly;

• Someone believes that they should be entitled to more than was left to them;

• Someone is completely disentitled from receiving part of the Estate under the Intestacy Rules and believes that they should be entitled to part of the Estate;

• The Executors are being difficult or inefficient in relation to the administration.

What Can You Do About it?

There are various Contentious Probate actions that you can bring to rectify the matter, to include:

• Challenges to the Will on the basis of the validity of same or alleged undue influence.

• Challenges to the mental capacity of the Testator/Testatrix when the Will was created.

• Challenges to the competency of the Executors.

• Challenges under the Inheritance (Provision for Family and Dependants) (NI) Order 1979.

The remaining section of this Article focuses on Contentious Probate challenges under the Inheritance (Provision for Family and Dependants) (NI) Order 1979.

Inheritance (Provision for Family and Dependants) (NI) Order 1979

You can make a claim under the 1979 Order if you feel that the Will (or the proportion of the Estate that you are entitled to under the intestacy rules) do not make reasonable financial provision for you. In other words, you believe that you are entitled to a bigger proportion of the Estate than you would overwise receive if you did nothing. 

Who can claim under the 1979 Order?

• The spouse or civil partner of the deceased.

• The former spouse or civil partner of the deceased (provided that a decree absolute of divorce has been issued and they have not remarried).

• Children of the deceased.

• Any person treated as a child of the deceased's marriage.

• Any person wholly or partially maintained by deceased and were dependant on them immediately before their death.

• Co-habitants – this is very useful as the intestacy rules exclude co-habitees’ entitlement to the deceased’s Estate where no Will was created.

Case Example:

In Nobel v Morrison & Another [2019] NICh 8, Ms Nobel - the Plaintiff – was financially dependent on her parents throughout the duration of her adulthood as they had housed her in the family home, paid all her household bills and provided her with regular maintenance. Ms Nobel was also unemployed and had ill-health, so she had very little prospect of gaining employment in the future.

However, when Ms. Nobel’s father (the surviving parent) died it came to light that the effect of his Will would mean that the family home would be sold, and that Ms. Nobel would only receive £58,000 from the sale proceeds.

Ms Nobel believed that the family home was going to be left to her and her sister on the basis that she would be given a right of residence for life. Therefore, she made a claim under Inheritance (Provision for Family and Dependants) (NI) Order 1979 in that reasonable financial provision was not made for her under her father’s Will.

The court agreed and held that the Will in fact did not make adequate financial provision for Ms. Nobel as the sale proceeds would be insufficient for her to rehouse herself. It was ordered (so long as various conditions were met) that the family home among other assets were to be transferred to Ms. Nobel.

How We Can Help

If you wish to bring or defend a Contentious Probate action, our expert probate Solicitors would love to hear from you!