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Contentious probate is the part of probate law that deals with disputes — usually about whether a will is valid, or who should be given the grant to deal with the estate. The Senior Courts Act 1981 separates it from ordinary, "non-contentious" probate, which is the routine business of obtaining a grant where no one disputes the right to it. When a dispute reaches court it is a "probate claim" under Part 57 of the Civil Procedure Rules. The term is also used more loosely for related estate disputes, such as Inheritance Act 1975 claims.
Most estates never involve a dispute. Someone applies for a grant, the Probate Registry issues it, and the estate is dealt with. "Contentious probate" is the name for what happens when there is a dispute instead. This short guide explains what the term means. It covers England and Wales. For the detail of how a will is challenged — the grounds, who can bring a claim, and the process — see our main guide to contesting a will.
The distinction comes from the Senior Courts Act 1981. Section 128 defines "non-contentious or common form probate business" as:
"the business of obtaining probate and administration where there is no contention as to the right thereto"
It includes all non-contentious business about wills and intestacy that is not part of court proceedings, and — perhaps surprisingly — "the business of lodging caveats against the grant of probate or administration". So entering a caveat is itself non-contentious; a dispute becomes contentious when it is contested in the court.
Schedule 1 to the Act divides the work between the divisions of the High Court. Non-contentious or common form probate business is assigned to the Family Division (the Act's own definitions refer to the "Principal Registry of the Family Division"). "Probate business, other than non-contentious or common form business" is assigned to the Chancery Division.
Two related terms:
When a dispute goes to court, the Civil Procedure Rules call it a "probate claim". Rule 57.1 defines it as a claim for:
not being non-contentious (common form) business. Probate claims in the High Court are assigned to the Chancery Division; in the County Court they can only be started at a hearing centre that also has a Chancery district registry, or at the County Court at Central London (CPR 57.2).
Challenges to whether a will is valid. These are probate claims. The court rules name the main grounds by requiring them to be set out specifically: that the will-maker did not know and approve its contents, that the will was not properly signed and witnessed, that the will-maker lacked the mental capacity to make it, or that it was obtained by undue influence or fraud (CPR 57.7). See lack of testamentary capacity, undue influence and fraud and forgery in wills.
Inheritance Act 1975 claims. These do not challenge the will. They ask the court to order "reasonable financial provision" from the estate for certain family members and dependants, whatever the will or the intestacy rules say. See Inheritance Act 1975 claims.
Rectification. A claim asking the court to correct a will that "fails to carry out the testator's intentions" because of "a clerical error" or "a failure to understand his instructions" (Administration of Justice Act 1982, section 20). It has its own six-month time limit from the grant. This is covered in our guide to contesting a will.
Disputes about executors and the running of the estate. Claims to remove or replace an executor or administrator come under Part 57 (see removing an executor). Claims for the court to decide "any question arising in the administration of the estate of a deceased person" come under Part 64 of the rules (see executors' duty to account to beneficiaries).
Part 57 of the Civil Procedure Rules deals with probate claims, rectification, removal of personal representatives and Inheritance Act claims together, which is why "contentious probate" is often used as a label for all of them, even though strictly only the first is a probate claim.
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