What is Contentious Probate?

INTRODUCTION

Losing a loved one is difficult enough without all the complexity involved in managing their estate.

However, the reality is that disputes often arise on both the Executor and Beneficiary side. These can end up being emotionally charged, especially when family members are involved. And they can often lead to lengthy and expensive legal battles.

This article highlights the critical areas of contentious probate. Since this is a relatively broad area, we encourage you to refer to other related articles in our FAQ section and to contact us if you need help clarifying the options available.

WHAT TRIGGERS DISPUTES IN THE PROBATE PROCESS?

Contentious probate can arise for a variety of reasons during estate administration. The most common disputes typically involve:

• Will Validity or Interpretation: The legitimacy or the terms of the Will can be challenged.
• Distribution of Assets: Conflicts can arise over the distribution of assets from an Estate.
• Testator or Beneficiary Issues: There may be a valid concern about the Testator or the Beneficiary.
• Estate Administration: Disagreements may arise about how the Estate administration process is being carried out.

  
  

WHAT ARE THE PRIMARY CONCERNS IN ESTATE PLANNING DISPUTES?

The most common disputes emerge from the following three scenarios:

• Beneficiaries or other interested parties contesting either the terms of a Will or the distribution of assets from an Estate.
• Executors face particular challenges during the process of estate administration.
• Clerical or negligence issues arise during the will-drafting process.

WHAT ARE THE COMMON AREAS OF DISPUTE IN CONTENTIOUS PROBATE?

During the estate administration process, contentious probate can arise for a variety of reasons, such as the following:

• Disagreements over the validity or interpretation of a Will.
• Disputes about the distribution of assets from an Estate.
• Concerns regarding the Testator (e.g., mental capacity, undue influence).
• Estate administration or Will execution issues.

Disputes Relating to the Estate:

• Will Clarity: Disputes arise over the validity or interpretation of the Will’s terms.

• Clerical Errors: Mistakes in drafting can often lead to misunderstandings. Common errors include inaccurate recording of the Testator’s wishes or incorrect asset values.

• Negligence Claims: Allegations arise that a Will writer or solicitor has drawn up the Will incorrectly or has been negligent in their advice or drafting of the Will.

Beneficiary/Testator Disputes:

• Division of the Estate: A dispute has arisen between Beneficiaries over how the Estate is being divided.
• Exclusion: A beneficiary has been left out of a Will.
• Expectations: A Beneficiary has received less than expected or a pre-Death agreement has been unfulfilled.
• Testator’s Capacity: A dispute has arisen over the mental capacity of the Testator when the Will was drawn up or was under the influence of alcohol and/or another intoxicating substance and/or medication at the time of writing their Will.
• Undue Influence: Allegations (or proof) has arisen of undue influence, coercion, or financial abuse, which can impact the terms of the Will.

Estate Administration Disputes:

(i) Administration Issues:

• Estate Management: Challenges to how the Estate is being handled. A Beneficiary may wish to remove a Trustee.
• Executor Behaviour: Concerns arise regarding a lack of transparency, competence, or integrity on the part of the Executor.
• Mismanagement: Problems may arise with the way the Executor is managing the Estate.
• Distribution Concerns: Problems may arise with the way the Estate is being distributed.
• Information: An Executor may fail to provide accurate or sufficient information to Beneficiaries.
• Defence Against Challenges: Somebody may be challenging you as the Executor and you wish to defend that challenge.

(ii) Payment Issues:

• Inappropriate Charges: The Executors are either charging for something when they shouldn't be, or they are overcharging.
• Third-Party Payments: The Executors are either improperly making payments to third parties or failing not make payments.

HOW TO AVOID CONTENTIOUS PROBATE?

1. First, try to understand whether there was a general mistake or a clerical error. 

• Often, it can be tempting to jump to conclusions when errors are found, and this is when emotions start to run wild. For example, mistakes can lead to disputes between family members who might then believe there are suspicious circumstances or that they simply haven’t been provided for. That, in turn, can lead to people questioning the true intent of the Will in the first place.

• But sometimes, even though they’re inexcusable, clerical errors can be genuine mistakes. To save time, money, and heartache, they should, therefore, be isolated from the more complicated matters of suspicious circumstances or general disagreement so that the mistake can be quickly corrected. This process is called ‘rectification.’

• To avoid contentious probate, it’s important to ensure that your Estate planning documents are clear, unambiguous, and legally sound. So in the first instance, check your documents for clerical errors and any ambiguities.

What’s a clerical error?

In the context of writing a Will, a clerical error can include:

• Spelling mistakes and numerical errors.
• Factual errors made in the Will.
• The Will writer may not have understood the deceased individual's wishes, leading to a Will that doesn't accurately the distribution of the Estate in the way the Testator originally intended.

2. Is the language unclear or ambiguous?

• Usually, this happens when the Beneficiaries and/or the Executor cannot reach an agreement on the actual meaning of a Will.

• If you think the wording is too complicated or unclear, you can also apply to the court to have the language changed and simplified or to have the court interpret the Will. This process is called 'construction.'

NEXT STEPS IF YOU SPOT A MISTAKE OR WISH TO NAVIGATE A DISPUTE

For assistance with correcting mistakes in a Will or navigating a dispute, our team is on standby to provide expert advice and assistance.

Simply contact us and we’ll provide you with a range of options to ensure that your estate plan is accurate and reflects your wishes.

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Simply book a callback.

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