Probate disputes and how to avoid them

by Kidd Rapinet on April 23, 2021
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Probate disputes arise when there’s a disagreement over the administration of someone’s estate when they die. This could include a dispute over the value of assets, the interpretation of a Will or dealing with difficult executors.

Probate disputes are actually on the rise and there are a number of reasons for this:

  • With an increase in second marriages, families are now more diverse than ever. Where couples have separated and then merged with new families, the cross-over can cause conflicts
  • An increase in life expectancy means people are making Wills, or changing them, at an older age. This can lead to concerns that they weren’t in the right frame of mind at the time
  • With property prices higher than ever, people’s estates are worth more. Generally, the more money there is at stake, the greater the likelihood of a dispute

Common probate disputes

Probate disputes are typically caused by issues in a Will. Some of the most common problems we see include:

  • Disagreements between beneficiaries. Someone may feel they should be entitled to more or they wanted something sentimental such as a piece of jewellery which was left to another beneficiary
  • An executor is mismanaging an estate
  • Disputes over the interpretation of a Will
  • Disputes over the value of the assets involved
  • There are concerns about the testator’s (the person’s who’s Will it is) state of mind at the time the Will was executed
  • Someone who was expecting to inherit hasn’t been included as a beneficiary
  • Someone was financially dependent on the deceased before their death but hasn’t been listed as a beneficiary

Probate disputes can be raised even if there isn’t a Will. Dependents of the deceased may want to challenge how the estate has been divided for example or if you were particularly close to someone, you may have concerns over the way in which their legacy is being handled.

How to avoid a probate dispute

You want to ensure that your legacy is left to the people you love and that they’re well looked after when you’re no longer here. The last thing anyone would want is for their estate to cause division among their loved ones.

The best way to avoid a probate dispute is to seek legal advice and to put a Will in place. By clearly expressing who you want your estate to go to, this reduces the likelihood of disagreements occurring.

When writing your Will, ensure:

  • It has been drafted properly. We recommend using a reputable law firm or Will writing company. We do not recommend making a DIY Will – this is one of the most important documents you will ever create in your life.
  • The Will has been signed or executed by the testator. If it hasn’t, it will be invalid which opens the door to potential probate disputes
  • The testator is of sound body and mind at the time of making the Will. You can obtain a report testifying to your ‘testamentary capacity’ if you are elderly or have been diagnosed with a condition that affects your capacity, such as dementia
  • The Will must be signed by the testator in the presence of two or more witnesses (present at the same time). Each witness must also sign the Will in the presence of the testator
  • Keep your Will in a safe place and ensure your executor/s know where it is. While copies can be made, the original prevents disputes occurring
  • Review and if required, update your Will every few years or when your circumstances change (marriage, divorce, grandchildren or receiving inheritance yourself for example). Remember to destroy any earlier Wills

If you would like help making a Will or dealing with a probate dispute, please call our offices or use the form to get in touch with a member of our team.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

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