Comprehensive Guide to the Contesting Probate Proceedings

There are three main stages to contentious probate proceedings, including ultimately a trial at court. The sooner contentious probate is resolved, the lower fees will be.

When someone died, their executor as named in their will must apply for probate, which is the grant to allow them to take ownership of the estate and ensure all debts are paid, liabilities fulfilled and then any remaining funds split between the parties named in the will. However, it can be contested for a number of reasons.

Read on to learn more about contentious probate proceedings.

Looking for other information on Contested Probate? This guide has info on 'Contested probate proceedings details' We have also writen extensively about:

• - Contentious probate costs explained
• - Contentious probate rules explained
• - Non-contentious probate rules explained
• - Contesting a will in Scotland

We update all our guides regularly. If you are researching contesting probate and we haven't got an exact guide that helps you, keep coming back as we update daily.

When Can Probate Be Contested?

There are a number of reasons you might want to contest a will. It may be that you believe the will is fraudulent – either it was completely forged, or it has been altered by someone who wasn’t the deceased.

The will must also have been made of complete free will and of sound mind. There are two elements to this – if you believe that the deceased wasn’t mentally able to make their will, and that it was done whilst mentally compromised, then the will could be invalid. Also,. If the will was made under duress – a family member forced them to make the will and give them benefit – then it is another valid reason to contest it.

You can also contest a will if you don’t believe it is being executed correctly. If the deceased left specific instructions that are being ignored by the executor, you can challenge it and try to get it resolved so that the deceased’s wishes are properly honoured.

Finally, you may be able to make a claim under the Inheritance Act 1975 if you are a close family member of the deceased and you aren’t receiving anything from their will. You have to be either a married or civil partnership spouse of the deceased, or a child.

If you weren’t in a legal partnership but you lived with them for two years or more then you might also be able to claim.

What Are the Proceedings?

The contentious probate proceedings will always begin with the complaint that is lodged, and it can sometimes be finalised by the probate registry where the contentious issues are clear and obvious. This isn’t too common, as most disputes will involve some form of disagreement between parties, but in cases where the will is invalid, and it’s immediately clear that’s the case then it can be dealt with quickly.

However, most contentious probate cases will end up at mediation. This is the process where the parties will either meet or communicate via writing to discuss the issues and try to find a solution. This could be done entirely by the appointed solicitors for each party, or it may be done in person with both the parties and their solicitors present.

Mediation is effective in resolving over half of all contentious probate cases. Most people don’t want to take issues further to avoid rising costs. In many cases, where either the executor isn’t following the instructions of the will, or there is definitive evidence that the will is invalid, the solicitors will recommend that a resolution at mediation is better for all parties even if it means conceding. Solicitors are experienced in going to court and will know whether they’re likely to win or lose.

Contentious Claim

However, there are many situations where an estate is complex, and so are the issues surrounding the contentious claim. When mediation doesn’t work, the case will go to court. At this stage, the negotiations made during mediation won’t be made known to the judge, as they will have been made ‘without prejudice’. 

Yet the judge will be made aware of whether mediation took place. This is important as, if you refuse to mediate and are later found to have lost the case in court, your refusal to mediate may reflect badly on you and could influence the judge in deciding who pays the court fees. There is precedent for this.

When contentious probate goes to court, it could be resolved quickly, or it may then proceed to a full trial. A trial will guarantee a decision from a judge and is reserved for those situations only where the parties are at complete odds and cannot find a resolution. It’s a more extreme way to resolve a dispute and is generally avoided. Only 2% of contentious probate cases ever make it to a full trial.

Once the judge has reviewed all the evidence, they will make a decision and then decide on who is liable for the legal costs too. The costs usually aren’t paid from the estate, and so if you’re contesting probate, you must be prepared to potentially be liable for the legal fees both of yourself and also the party you’re up against.

How Much Does It All Cost?

There is no singular cost when it comes to contesting probate, as it’ll always vary depending on the size and complexity of the state and how far through proceedings the case goes before it is resolved.

However, we can give you a rough estimate. If you need to employ a solicitor to content probate for you (and you will – it’s not something you can do alone) and they can sort the issue immediately, you’re likely looking at costs somewhere between £500 and £1,500.

If it gets to mediation, then your solicitor will have to put in a lot more work to help you win your case. There’ll be the fees for any meetings or communications, as well as the extra hours. It’s likely that, if you need to go to mediation, you’re looking at around three months or more for it to be resolved. Expect to pay somewhere between £7,500 and £10,000 if it’s resolved at mediation, which will be just for your own legal costs. You won’t need to pay the legal costs of the other party unless it is something you include in negotiations.

Preparing for Court

It’s when things get to court that the expenses can really ramp up. Even if the case doesn’t make it to trial, preparing for court will likely see you incurring around £20,000 in fees. By the time it goes to trial, you could be looking at a resolution somewhere between 6 and 12 months after your first contested probate. If you lose, and the judge makes you liable for the other party’s fees, then it’s more likely to be significantly higher costs, such as the £74,000 referenced in the Weisz vs Weisz and Ors case.

That’s why it’s really important you understand not just the contentious probate proceedings, but also the costs. You should weigh up whether it’s something worthwhile. Often it will be – if you’re being wronged out of your share of an estate, that could be well into six figures and far outweight the costs you incur. But if your case is flimsy then you should ask whether the risk is worthwhile.

A good solicitor will review your case and be able to give you an indication of whether it’s likely you will be successful when contesting probate. They can’t give you a guarantee, but always seek the advice of a solicitor before you make any decisions to you can understand the risks involved.

How Can Money Savings Advice Help You Contentious Probate?

Here at Money Savings Advice, we have partnered with some of the UK’s leading Contested Probate claim management companies. They have already helped thousands of people make successful probate claims and they can do the same for you.

Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.

If you would like to speak to one of these claim management companies who can help you make a probate claim, then click on the below and answer the very simple questions.

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