Disputes in relation to a Deceased’s estate can occur in many different scenarios. Whether you believe a Will may be invalid, fails to make provision for you or you are unhappy with how the administration of the estate is being conducted by the personal representatives/Executors, our team has a wealth of experience that will be utilised to advise you of your rights and remedies. Our team includes associate members of the Association of Contentious Trusts and Probate Specialists (ACTAPS) and our non-contentious department contains members of the Society of Trust and Estate Practitioners (STEP) and are also members of the Wills and Inheritance Quality Scheme (WIQS). We are therefore able to offer client’s a complete service of specialist advice on such and are one of few firms able to do so.
Our team of solicitors will always work actively to ensure you are represented in a professional manner whilst mindful that contested disputes can often be distressing following the loss of a loved one and can often involve a dispute between family members.
The following are some of the common examples of contentious probate/Will disputes:-
1. Contesting a Will:
i) Due to their failure to comply with appropriate formalities;
ii) The Deceased lacking capacity;
iii) Undue influence/coercion of the Deceased.
2. Claims under the inheritance (Provision of Family and Dependants) Act 1975.
3. Failure of a Will to leave the property in accordance with life time promises.
4. Disputes in relation to the conduct and removal of Personal Representatives/Executors
5. Claims against Negligent Advisors e.g Will drafters
6. Breach of Trust
Who can bring a probate dispute or contest a Will
- Family Members – in particular blood relatives who would benefit according to the intestacy rules.These rules will apply in the event that a Will is found to be invalid unless an earlier valid Will exists. Family Members may also be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they have been left out of a Will.
- People who were financially dependent on the Deceased – under the Inheritance (Provision for Family and Dependants) Act 1975 a claim can be made in the event that you were being maintained by the Deceased prior to their death.
- A beneficiary under a previous Will – if the Deceased’s last Will is found to be invalid then the previous Will stands in its place. Therefore, a beneficiary under the previous Will, if that Will can be located may wish to consider bringing a claim in relation to the validity of a Will.
- A beneficiary – if a Will is valid, a beneficiary may still have a dispute if there has been a delay in payment or if the Personal representatives/Executors have failed in their duty to the beneficiaries.
- Made lifetime promises by the Deceased – If it can be evidenced that the Deceased promised/gave an assurance, which was relied upon, to the detriment of the claimant, then a claim may be brought. These types of claim are more commonly brought in relation to property and can be claims of significant value.
- Cohabitees – If you have lived with the Deceased for 2 years immediately prior to the Deceased’s death, as ‘Husband and Wife’, then a claim may be brought for provision under the Inheritance (Provision for Family and Dependants) Act 1975.
1 Contesting a Will
Wills must comply with various formalities as required by law in terms of the drafting of the document and witnessing the document. Errors in doing so, which can be particularly prevalent in ‘home made’ Wills or those not professionally drafted may result in the Will being found to be invalid. In this case, the property of the estate would pass according to the rules of intestacy or any previous valid Will.
To make a valid Will a person must understand that they were making a Will and have the intention to do so. It is often the case that Wills are made very near to the time of death. In this scenario, in particular, there may be questions raised in the respect of the Deceased’s capacity for many reasons, although there is often no independent evidence obtained from a medical expert to confirm capacity at the time a Will is drafted. Disputes can therefore arise in this type of scenario which may lead to a Will being found to be invalid.
iii) Undue Influence
We regularly act for individuals who have been disinherited by the Deceased changing their Will shortly prior to death. We are often able to establish that this has been done due to some form of undue influence placed upon the Deceased by the beneficiary or their agent. These cases are often very difficult to win as evidence of this sort of pressure is often very difficult to obtain and the Court will require a high level of proof and therefore expect to see strong evidence before making such an order.
Such claims may be brought due to duress placed upon the Deceased to make their Will in a certain way, threats to the Deceased or coercion, etc.
2 Inheritance (Provision for Family and Dependants) Act 1975
This Act entitles specific groups of claimants to bring a claim against an estate for financial provision:
- The wife or husband of the Deceased.
- A former wife or former husband of the Deceased who has not remarried.
- A child of the Deceased.
- Any person (not being a child of the Deceased) who, in the case of any marriage to which the Deceased was at any time a party, was treated by the Deceased as a child of the family in relation to that marriage.
- Any person (not being a person included in the foregoing paragraphs) who immediately before the death of the Deceased was being maintained, either wholly or partly, by the Deceased.
- Cohabitees who have resided with the Deceased as ‘Husband and Wife’ for at least two years immediately prior to the Deceased’s death.
When considering the Claimant’s claim the Court will consider various relevant factors to decide whether an award should be made and if so what amount should be awarded.
There are very short time periods in which to bring a claim under this Act. A claimant only has 6 months from the date of the grant of Probate to bring a claim and therefore it is vital that legal advice is sought immediately in order to preserve any rights that you may have. Failure to bring a claim in this time frame may mean that you are unable to pursue a claim under this Act.
3 Lifetime promises
We have had significant success representing claimants in disputes where promises have been made by the Deceased during their lifetime and that in reliance upon this, the claimant acted to their detriment. These cases are often brought by friends or family members in relation to property and can often result in claims of significant value.
4 Conduct/removal of personal representatives
Whether the estate is being administered by professional or lay Executors, beneficiaries may still have issues with the conduct of the estate and the quality of the information they are receiving. We have represented parties in applications to require the Executors to provide detailed accounts and information and also, where the failings of the Executors are significant, for their removal.
5 Negligent advisers
Professional Negligence claims can arise from many different areas and disciplines of professional advice. However, if a Will has been drafted incorrectly, by a professional, or in a way which makes it ineffective and therefore an intended gift fails, it may be the case that the dissatisfied party can bring a claim in negligence against the adviser for the amount which should have been received.
6 Breach of Trust
Trust disputes occur in many different scenarios, however, it is often the case that beneficiaries will have questions over the investment strategy of the Trustees or their conduct of the Trust Fund. As a result of our experience and the specialisms within the Department, we are able to offer clients expert advice on this very complicated and specialist area of law.
Disputes/Litigation can be expensive to conduct and therefore all funding options will be considered and Conditional Fee Agreements (‘no win, no fee’), or a deferred payment option may be available dependent on the facts of your case.
In the majority of cases we will represent the client on a private paying basis. However, it may be that costs can be recovered from the other party in the event that your claim succeeds.
If you would like to discuss a potential matter or would like any further information then please contact one of our team using the details shown on this page.