It is often the case that a testators dependant is not adequately cared for under the terms of the will. In extreme cases this may mean total omission which may be an error on the part of the testator or may be deliberate policy. By law, a testator cannot effectively cut out a dependant from their will and must make adequate provision failing which a dependant so treated has a legal right to challenge the will in a court of law which will usually order adequate provision for a dependant from the estate of the deceased. Legal action in a court of law can be instigated under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. Applications for support for dependants are the most common cause of contested probate litigation often by the parent or guardian of disabled or illegitimate children. There are a number of potential applicants apart from children which may include a spouse, an ex-spouse, a cohabitee of more than two years or any other person who depended upon the deceased for support.

One of the most frequent causes of litigation in regards to wills relates to inadequate provision for dependants of the deceased. Legal action can be started under the Inheritance (Provision for Family and Dependants) Act 1975 by any person (of any age) legally deemed to be a dependant at the time of the testators death for whom inadequate provision has been made. Applications to the court for financial support are most often made by disabled or illegitimate children. Other potential applicants include:
~ a dependent ex-spouse who was receiving maintenance at the time of death
~ supported children from a previous relationship
~ children living with the deceased
~ a separated supported spouse
~ the current spouse
~ cohabitee of more than two years
~ any person who received regular financial assistance

Court Proceedure

It goes without saying that a dependant or the person responsible for the well-being of the dependant must act quickly and take legal advice as soon as possible after the death of the testator. It is possible to lodge a caveat at the Probate Registry which gives the interested party 8 days notice of the impending issue of the Grant of Representation being either a Grant of Probate where there is a will which appoints an executor or a Grant of Letters of Administration where either a will is silent on the appointment of an executor or where there is no valid will in force. If the dependant misses the opportunity to file a caveat or does not act quickly enough after receipt of the notice of impending issue it is possible to issue an emergency ex-party injunction in the High Court which effectively prevents disposal of the assets on a temporary basis until such time as the claim is heard in full. An ex-party injunction can be issued and effective on the same day that the application is heard in the absence of representatives for the estate however the matter will be remitted back to court on notice as soon as possible so that both sides may put their arguments forward to the Judge. The injunction is effective as soon as it is made and notification or service is given to the estates representative. Failure to abide by the terms of an injunction is a contempt of court and may result in imprisonment. An injunction should not be entered into lightly because legal costs can be substantial and the loser may be ordered to pay the costs of the winner.

Probate Solicitors

When searching for a solicitor to take action under the Inheritance (Provision for Family and Dependants) Act 1975, you’ll find that most probate specialists are non-courtroom lawyers. The trend is for lawyers to take only one of the two paths in their career, rarely venturing outside of a pre-defined area of expertise. Finding a probate solicitor with courtroom experience is particularly challenging. For the most part, the work of a probate solicitor is non-contentious. Wills and trusts are drafted in an office setting and the lawyer works one-on-one with the client. Seldom is there a need to bring legal action in a court of law for probate matters. Should a dispute arise, the case is usually transferred to a litigator within the firm who may lack a background in the relevant area of probate law. The client suffers because the litigator, though capable and educated, isn’t comfortable with or knowledgeable about wills and probate law.

Probate Solicitors

A dependant with a potential claim should expect the other potential beneficiaries either under the terms of the will or as a result of the Intestacy Rules which determine precedence of relatives where there is no will to vigorously defend any claim that is made simply because dependants claims often extinguish the entire estate which may be awarded in full to the dependant. Qualified and urgent legal advice from a contested probate solicitor is essential in these cases.

Most probate solicitors do not deal with contentious cases and have little to no courtroom experience. On the reverse side, litigators, the ones who handle contentious cases on a regular basis, tend to deal more in business or accidents and have little to no experience with probate law. Despite this trend, you don’t have to sacrifice knowledge of probate law in order to find a solicitor who can handle disputes in court. Our lawyers are experienced and qualified in both areas and are comfortable both inside and outside a courtroom. We deal with applications under the Inheritance (Provision for Family and Dependants) Act 1975. You can contact us today for advice on wills and probate-related issues at no cost. Call our helpline or complete the contact form or email our offices and one of our solicitors will be in touch to discuss your case. This initial consultation is not chargeable and you are under no further obligations.