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Inheritance & Will Disputes

It is unimaginable that there can be a fall out at these times, leading to Inheritance & Will Disputes.  We understand how emotionally charged it can be.  

 

We deal with all clients in a sympathetic and supportive way to alleviate the distress of these types of disputes.

Last wishes - No Will

A person dies intestate, if they do not leave a valid Will.  When this happens those closest to the deceased such as their partner in life or even their children could receive less than the deceased intended.  This could result in their assets or money being distributed where not intended, and it could also mean more Inheritance Tax than necessary which will reduce the deceased's estate.

We assist executors and beneficiaries in various disputes including:-

 

  • allegations of Undue Influence;

  • disputes about jointly owned properties

Disputes about Wills

Leaving a Will which sets out clearly the deceased wishes can avoid many issues, however, arguments can and do still arise.  Losing a loved one is devastating and so very distressing when our emotions are at their most vulnerable during this time.  Family relationships are under considerable strain when everyone is coming to terms with loss and grieving for the deceased. 

 

Disputes can occur between beneficiaries (those entitled to receive a legacy) and executors (those who administer the estate after death). 

A Will could be challenged in Court in the following circumstances:

  • The Will was made under duress (i.e. under pressure from a third party)

  • The deceased did not have mental capacity at the time of making the Will

  • There is a technical defect with the Will, such as it not being executed properly

  • Negligently drafted Will

  • The Will was found damaged or torn

  • Promises of legacies made by the deceased outside the scope of the Will

Invalidity:

The Wills Act 1837 lays out strict requirements as to the validity of a Will.

 

A Will must be in writing and signed by the deceased (or their instruction) in the presence of two witnesses who should also sign. A witness may not be a beneficiary. The best practice is that there should be a solicitor’s attendance note setting out exactly how execution of the Will took place.

Capacity :

A testator must have a basic level of capacity. The test is not high and the testator must be capable of understanding the nature of making a Will and the effect of the proposed disposition, the extent of the assets which they possess and to gift,  and the “claims” which might justly be made against their estate (for example by dependants).

This is a common cause of claims. It is sometimes sensible where the testator is elderly or infirm to get a medical report confirming their capacity at the time that the Will is executed.

Undue influence:

The testator may sometimes be put under inappropriate pressure to make gifts in their Will. This is extremely hard to prove.  The Courts are alert to “odd” provisions – particularly where the principal beneficiary of such a Will has drafted it, or been instrumental in its preparation.

The law concerning disputed Wills/estates is complex. Rapid action can be necessary, for example to comply with the time limits in the Inheritance Act or applications to register caveats at the Probate Registry (preventing the issue of a Grant of Probate).

Grant of Probate disputes

Once a person dies and there is a Will it is necessary to locate it so that a Grant of Probate can be obtained and the estate duly distributed in accordance with the terms of the Will. These steps can be problematic and complicated for the executor in the following circumstances:

  • The original Will is lost or destroyed

  • The Will is in the possession of someone who refuses to release it

  • Where a Caveat has been entered

  • Where assets are held abroad

  • Threat of legal action against those seeking to obtain a Grant of Probate

Equally, beneficiaries or persons with an interest in an estate may wish to ‘freeze’ the granting of probate so that a particular dispute or issue can be investigated.

A person can appoint up to four people in a Will to act as executor. Although executors should remain neutral, there is potential for disputes to arise between themselves and the beneficiaries during the administration of an estate. 

Inheritance Act Claims

The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) enables a child of the deceased to make a claim against their estate in circumstances where the deceased did not make reasonable financial provision for them in their Will (or by an intestacy). 

 

The scope of what constitutes a child extends to any child of the deceased including illegitimate, legitimated and adopted children of any age and any person treated by the deceased as a child of the marriage or civil partnership.

 

In recent years the courts have seen a spate of claims under the 1975 Act brought by adult children.  Under Section 3 of the 1975 Act, the court will take into account the following factors when deciding whether a reasonable financial provision has been granted for a claimant:

a) the financial resources and needs of the applicant;

b) the financial resources and needs of any other applicant;

c) the financial resources and needs of the beneficiaries;

d) any obligations and responsibilities of the deceased towards any applicant and any beneficiary;

e) the size and nature of the estate of the deceased;

f) any physical or mental disability of any applicant or beneficiary;

g) any other matter, including conduct, which the court may consider relevant.

 

The Inheritance Act 1975 may be used to challenge the distribution of an estate either whether the deceased left a Will or did not (died intestate).

 

The law does require us to make proper provision for surviving spouses, former spouses (and civil partners), children (including adult children), co-habitees (of at least two years standing) and anyone else who was “maintained” by the deceased.

In determining whether to grant an Inheritance Act application the Court has to consider the reasonable requirements of the Applicant. The test for existing spouses and civil partners is akin to their entitlement on a divorce – but in the case of other categories of claimants it is the sum they require to be “maintained”. In considering this the Court must taken into account a specific checklist of criteria.

The Court may in its discretion award continuing maintenance, awards of capital sums or transfers of land (outright or on trust) for the benefit of a successful Applicant.

Any Court application must be issued within six months of the Grant of Representation. It can be difficult for this time limit to be extended and it is therefore vital that early advice is sought if you believe that you are entitled under the Inheritance Act for provision to have been made for you.

Probate Glossary

 

Caveat:

A Caveat is an application made to the Probate Registry and prevents the issue of most forms of Grants of Probate or Letters of Administration.  It is a useful strategy for preventing the administration of an Estate where there is a dispute about entitlement to the grant of the distribution of the Estate.

There is a procedure to deal with disputes about Caveats. The individual seeking to challenge the Caveat may serve a “warning” (which must be in a specific format) and the effect of this is that if the caveator wishes to persist with their Caveat they must issue a summons for the matter of entitlement to be determined by the Court. There are statutory time limits applied and it is therefore vital that you seek legal advice about these.

Standing Search:

Sometimes it is not necessary to obstruct a Grant of Probate – one simply wishes to know when a Grant has been issued. An example of this would be where you are contemplating bringing an action under the Inheritance Act as explained above.  However, this cannot be issued until a Grant has been issued.

Citation:

A Citation is effectively an Order of the Court calling upon a party interested in an Estate to undertake a particular step.

An application for a Citation must be supported by a sworn statement and a caveat must be lodged.

Citations can require for example an Executor to formally apply for Probate where they have refused to do so voluntarily.

An application for a Citation is often used as an opening more in contentious Probate proceedings.

Personal representatives: ‘executors’ and ‘administrators’.

If the deceased has left a Will, it will name someone that they have chosen to administer their estate. This person is known as an executor.

If the deceased has not made a Will, the intestacy rules (which set out the order of entitlement in the absence of a Will) will dictate who is entitled to administer an estate. They are known as Administrators.

 

Both Executors and Administrators need proof that they are entitled to act, and this is obtained by an application to the Probate Registry for a Grant of Representation.

Grant of Representation:

A Grant of Representation is a generic term for the legal document issued by the Probate Registry to the Executors or Administrators in the estate of a deceased person which confirms that they have the authority to deal with their estate. Executors get a Grant of Probate; Administrators get a Grant of Letters of Administration.

Starting Proceedings

The Civil Procedure Rules (CPR)1998 govern all civil procedure in England and Wales here. The Rules applicable to these cases are: 

 

Parts 57 (Probate and Inheritance)

Part 64 (Estates, Trusts and Charities) deals with court proceedings and claims concerning Probate, Wills, Executors, the Inheritance (Provision for Family and Dependants) Act 1975 and the Administration of Estates of deceased persons.

 

For further information on the CPR follow the links below:

The Government have also published guidance on Probate.

 

What are the types of Orders the Court can make?

The range of orders that a Court may make are wide and include:-

(i) Order for the removal and/or substitution of an Executor or Administrator; these orders may be made where there is clear evidence of mismanagement, delay dishonesty or breach of an Executor’s duties to act in good faith towards the Estate.

(ii) Orders as to the validity or interpretation/construction of a Will – for example that the Testator lacked capacity to make a Will (see explanation above).

(iii) Order as to who is entitled to apply for a Grant of Administration in an intestacy case.

(iv) Order for the revocation of an existing grant available where the original grant was obtained by a false statement for example where a Will has been invalidated by a later Will, or that the Will has been revoked – perhaps because the deceased re-married after the Will was made.

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