Lawyers in the UK tend to categorise themselves into contentious or non-contentious categories which means that they either do court work or they don’t do court work. It seems that in general there is a mind set and that a lawyer is either in one camp or the other camp and has a reluctance to venture out whereas in reality there are circumstances where both sets of skills require to be exercised by one person who understands both sides of a problem. A probate solicitor is generally considered to be non-contentious as the majority of their work involves drafting wills and trusts with little need for recourse to the county court or high court and when such occasions do arise the wills and probate department in a solicitors office will often transfer difficult cases that may need court action to a litigation department that has little experience of wills and disputes and is more used to dealing with contested personal injury cases or commercial disputes.
Disputed Wills and Contested Probate Solicitors
Finding an experienced contested probate solicitor who deals with court disputes is not easy as there are few who specialise in the topic. A trip to your local high street solicitor is likely to be fraught with risk if they take on a litigated case in an area where they have little experience. To take the risk out of selecting an appropriate contested probate solicitor you may consider ACTAPS – The Association of Contentious Trust and Probate Specialists.
Most litigation in a court of law carried out by a contested probate solicitor relating to wills and disputes arises when either the will is not valid, or has been lost or destroyed or there is inadequate provision for a dependent of the deceased :-
A valid will must be made by a person of sound mind, over the age of 18 years, without undue influence from another person. The document must be signed or acknowledged to have been signed by the testator in the presence of two witnesses, who are not beneficiaries who must also sign the document.
Dependents of the deceased are entitle to expect continued support from the testator even after the testator’s death. If the testator was in the habit of supporting someone who may be a spouse, a partner, a child or a disabled person and adequate provision was not made then that person can take action in the court for provision of a lump sum or maintenance.
Every year there are a number of applications to the registry to accept a copy of a will when the original cannot be found. This is a difficult situation as there may be a presumption that as the will is missing it has been destroyed by the testator prior to death which effectively revokes it. These case are often only resolved after a full court hearing where a judge listens to evidence from both sides and subsequently gives judgement in favour of one of the parties to the action.