There are some probate solicitors who also deal with litigated issues in a court of law known as contested probate which may occur if there is a dispute over the validity of the will or because potential beneficiaries have been left out of the will including dependants.
Individuals who were dependent upon the deceased have a legal right to the continuation of that support. A will failing to make provisions for such support is one of the most frequently litigated issues in wills and probate law. The Inheritance (Provision for Family and Dependents) Act 1975 which is also referred to as The Inheritance Act 1975 is the law that provides for the dependent’s right to support. Under the terms of The Inheritance Act 1975 an action can be brought by a person of any age who is legally deemed to be a dependent at the time of the testator’s death and for whom adequate provisions for support have not been made. These are some of the individuals who could potentially make an application to the court for financial support :
- current spouse
- children living with the deceased
- supported children from a previous relationship
- illegitimate children
- disabled children
- separated spouse receiving support at the time of testator’s death
- ex-spouse receiving maintenance at the time of the testator’s death
- cohabitee of the deceased for more than two years
- any other person who depended on the deceased for regular financial assistance
Probate solicitors tend to fall into one of two categories: those that do courtroom work and those that don’t. Finding one who deals with both types of case is not easy. Typically a probate solicitors work is non-contentious. They work in an office setting and seldom have the need to go to court. If a contentious case should arise, it will be transferred to the firm’s litigation department. Most firm’s litigation departments focus on business disputes and accidents. It is unlikely that those solicitors will have a background in probate law to efficiently deal with an application under the The Inheritance Act 1975. The client is forced to sacrifice specialised knowledge in order to work with a solicitor who has litigation experience.
As explained above, it is rare to come across a probate solicitor with the courtroom experience necessary to handle contested wills. Fortunately, it isn’t necessary for you to choose between knowledge and experience if you contact ACTAPS – The Association of Contentious Trust and Probate Specialists who will refer you to an experienced contested probate solicitor with experience of contentious probate and disputed wills and in particular with applications under The Inheritance Act 1975. They are capable of handling wills and probate cases where legal actions are being brought in court. Many of these solicitors offer free legal advice on matters related to wills and probate law. A consultation with a probate solicitor is confidential, and there is no further obligation to use their services if you do not like the advice that is given to you at the initial meeting.