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The Clock Is Ticking For Contested Probate Claims9th Aug 2019

by Neil Andrews on 9th Aug 2019

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If you feel you must contest the provision left by a relative in their will, it can be a stressful time for both you and your family.

This process is made all the more challenging by the existence of rigid – and exceptionally short – timescales whereby your inheritance claim can be lodged.

Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document, which represents the true last testament of the person who has died – or whereby the estate is settled. Alternatively, this will follow the rules of intestacy if no valid will was left.

After probate is granted, there is a short six-month window where you can lodge a claim to contest any provision left for family and dependents. Given that most civil claims allow for a period of six years, this is a very short period indeed – and if you’re not involved with the administration of the estate, you might not even be aware that probate has been granted, let alone that your time is running out.

Therefore, if you have any doubts regarding provision, it’s vital to seek legal advice immediately.

How Do You Contest Probate?

Should you wish to challenge provision, you would do so through the Inheritance (Provision for Family and Dependants) Act 1975. If somebody has died without making reasonable financial provision for certain relatives or dependents, the Act allows a court to change the distribution of their estate, in order to make reasonable financial arrangements.

In order to be covered by the Inheritance Act, the claimant must have one of the following relationships to the deceased: 

  • A spouse or civil partner
  • A former spouse or civil partner who has not remarried or re-civil partnered
  • A person effectively living as a husband or wife for at least 2 years prior to the deceased’s death
  • A child
  • Someone treated as a child or who was financially maintained by the deceased, wholly or partly.

For all of these categories, you must satisfy specific criteria in order to be eligible to claim. However, regardless of your relationship to the person who has died, you can only lodge a probate claim within the six-month window, unless a court deems your circumstances to be exceptional.

Why Is The Deadline To Contest Probate So Short?

It’s important that those who are entitled to an inheritance are able to receive it in a reasonable amount of time.

These needs are balanced carefully alongside those of any potential claimants, in order to avoid long delays for beneficiaries who may be relying on their share of the estate.

What Happens If You Miss The Deadline To Contest Probate?

Claims issued under the Inheritance Act must be lodged within six months of the issue of the Grant of Probate/Letters of Administration.

The longer you wait to claim, the less likely it will be that your claim will be successful. When it comes to contesting probate, time is of the essence, even if you think your circumstances are exceptional.

If you try to issue a claim after the six-month period has elapsed, you will need the court’s permission to extend the deadline. When deciding if it should exercise its discretion, the court will consider whether the claimant has acted promptly, and the circumstances in which the extension was requested.

In order to make their decision, the court will usually consider the following factors:

  • The merits of the claim, and the prospect of success if it had been made on time
  • Whether negotiations had begun before the time limit expired
  • Whether the estate has already been distributed
  • Whether dismissal of the claim would leave the applicant without recourse
  • Whether there was an identifiable trigger for bringing the claim.

None of these factors will be considered in isolation – so, for example, the mere fact that an estate is yet to be distributed within six months wouldn’t be sufficient cause to extend the deadline.

The court will not wish to prejudice the existing beneficiaries of the estate, and thus the decision is made on a careful balance of what is fair to both parties. If negotiations began before the deadline, it’s more likely (although far from guaranteed) that an extension of time will be permitted – so it’s vital to make your claim as quickly as possible.

Who Pays For A Contested Probate Claim?

it is possible that the estate will pay for your legal costs, though not guaranteed. At Coles Miller, we can offer a No Win, No Fee service, allowing you to approach us with further confidence.

Get Expert Legal Advice – Before It’s Too Late

If you think you may have grounds to contest a will, don’t delay – it could be fatal to your claim.

Get expert legal advice contact 01202 338800.

This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Managing Partner Neil Andrews at Coles Miller Solicitors LLP.