Can you still contest probate without a will?

In England and Wales, the rules decide what should happen with an estate when there is no valid last will, or the will does not cover all the estate. The rules stipulate who the estate is distributed to in a fixed order based on the deceased’s surviving relatives as follows: -

1.  Married couples and Civil partners
2.  Children
3.  Parents
4.  Siblings of whole blood
5.  Siblings of half blood
6.  Grandparents
7.  Uncles or aunts of whole blood
8.  Uncles or aunts of half blood

This list is also the list in priority of who can apply for probate.

These rules may still not follow the deceased’s wishes or consider their personal relationships - for example an unmarried partner of the deceased has no statutory inheritance rights.

In addition, in the case of an intestate estate, a spouse or civil partner would not automatically receive all the estate if the deceased also had any surviving children.   In such circumstances, if the value of the estate (including property) was worth less than £270,000 the surviving spouse or civil partner would receive all the estate but if the value exceeds £270,000, they will only receive personal possessions together with all the assets (including property) up to £270,000. The remainder of the estate will be shared between the surviving spouse and any surviving children.

Inheritance Act Claims

The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) makes provision for certain categories of persons (see below) to be able to bring a claim under the Act if the deceased’s estate does not make reasonable financial provision for them.  Such claims can be brought whether the deceased has a validly executed will on death or died intestate, providing the deceased was domiciled in England and Wales at the date of death. Whether the party in question would have a potential claim under the Act is beyond the scope of this article.  Each case will turn on their own individual facts and so legal advice should always be sought as early as possible, particularly given that the claim needs to be issued within 6 months of the date of the issue of the grant of probate.

Who can bring a claim under the Act?

1.  Spouse or civil partner
2.  Former spouse/former civil partners
3.  Cohabitants provided they were living with the deceased as though they were the spouse or civil partner of the deceased and for a period of 2 years immediately prior to the death of the deceased
4.  Children Including any children who was treated by the deceased as a child of the family
5.  Any other person who was being maintained by the deceased immediately prior to the date of death.