Contested Probate & Will FAQs


There are times when a will is brought into contention after the death of the testator. This is usually referred to as contested probate which occurs when a person who isn’t a beneficiary in a will but believes they should have been a beneficiary disputes the either the content of a will or the wills entire validity.


Contested probate can arise for any number of reasons the most common being as a result of inadequate execution of the document at the time it was signed and witnessed. The rules are clear and failure to comply with them can invalidate a will.


Legal action for contested probate also often occurs when the testator fails to leave adequate provision for a person who was a dependent shortly before the death of the testator. The dependent can apply to court for adequate maintenance an=d the court thereafter deals with the other beneficiaries rights under the will.


Sometimes a witness is also a beneficiary and in this case they will lose their legacy whilst the rest of the will stands.


Inadequate codicils, which are a later addendum to a will, often cause extreme problems and are frequent causes of legal action for contested probate.


Lost wills are a particular problem as the question which must be asked is whether or not the will was actually lost in which case a copy can be proved in order to obtain a grant of probate or was the will deliberately destroyed by testator with the intent of fully revoking it in which case an earlier will may take precedence. In either case it is necessary to start court proceedings which may become a contested probate action


What is a Will?

A Will is a just a written record that says who you want your money and possessions to go to when you die. As it is a very important document the law specifies what will be recognised as a Will. Remember, though, that it is a temporary document and can be changed at any time.


Why should I make a Will?

It ensures that your wishes are carried out. Otherwise you leave it to chance and the Law of Intestacy. The result may not be what you expect. Making a will should also be about the little things, like leaving a favourite piece of jewellery to a godchild or a painting to a niece. If you own your own home you should make a Will but even if you don’t own your own house you may have a little money, some furniture or jewellery or even some life insurance policies. It all adds up.


When do I need to make a Will?

Now! Only by doing this can you put your mind at rest that your wishes will be carried out. Everyone should have a Will – there are few who have nothing of material or sentimental value to leave behind as a legacy. Not only that, you will ensure that you leave behind no anxieties or difficulties about winding up your affairs.


Can anyone make a Will?

Of course, you don’t have to make a Will, but experts agree that by making a will you will be able to set out who is to benefit from your property and possessions (your estate) after your death. It will also help make sure that your estate, after any taxes and debts have been paid, is passed on as you want.


Can I choose the Executors?

Executors are people who are responsible for passing on your estate. You can appoint executors by naming them in your will. The courts can also appoint other people to be responsible for doing this job. If you do not make a will, your estate will be passed on according to a scheme laid down in law. Who is entitled under this scheme (which is designed to reflect the wishes of the average person) will depend on which relatives survive you, if any.


What happens if I die without a Will (intestate) ?

If you die without making a Will, or if your Will is invalid, you die intestate. The management of your estate, which is your house (if you have one) and any other assets minus all your debts, is then done by administrators (called ‘executors-dative’ in Scotland) appointed by the court, who will probably be your close relatives. In some cases, your possessions may go to the Crown, but generally the bulk will go to your spouse or if you don’t have one, your children. If you have no children, other blood relatives are next in line.


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