Contentious Probate & Trusts

Mainly centred upon the validity of a Will or codicil and who is entitled to take out a grant either of probate or of letters of administration. 

Where the will was executed as a result of external pressure from a third party, without which the estate would have been distributed differently. 

Did the signing of the will comply strictly with the various statutory requirements for its proper execution? 

The person making the will must have fully understood the contents of the will and have approved the way in which the estate is to be distributed under it. 

Where someone poisons the mind of the person making the will by making dishonest allegations about another prospective beneficiary’s character, to the extent that the person making the will excludes that beneficiary or gifts them a relatively small amount. 

Claims under the Inheritance (Provision for Family and Dependants) Act 1975.  Has the will or the intestacy rules made reasonable financial provision for the Claimant? 

We act for both Claimants and Defendants.  Our clients include minor children, adult children, children treated as a child of the family; surviving spouses and civil partners, co-habitees and people maintained by the deceased; and neutral executors. 

A claimant may be granted relief where there was an assurance made to the claimant by the deceased concerning a specific asset; reasonable reliance on it by the claimant; and detriment to the claimant in consequence of that reliance.  It must then be unjust for the deceased to have gone back on their word by making a will depriving the claimant of the benefit they had been led to expect. 

Where another person has falsely created or caused to be executed a will that was not of the making of the deceased, or concealed or destroyed a valid last will of the deceased with the intention of making unauthorised financial gain from the estate. 

Disputes can arise on an intestacy in terms of distribution of assets and who is entitled to take out a grant of letters of administration. 

The courts can look into the conduct and behaviour of executors and make orders ranging from directions to produce accounts and to disclose information and documents through to the removal of the executor and replacement with another if appropriate.  We act for beneficiaries bringing such claims or for executors in defending them. 

An act by a trustee that is not authorised either by the trust document or by law, or a failure to act as prescribed by the trust or by law.  

We can look into the inaction of executors and pursue them where such delay is excessive and/or unreasonable to ensure the estate is progressed without further delay.  See also “Breach of Executor’s Duties” above. 

Where assets are at risk of being dissipated unlawfully and of being lost to the estate, we can take steps aimed at preventing such dispersal until the estate can be lawfully dealt with.  Those steps may include the obtaining of a court injunction restraining disposal. 

Where trustees, executors or third parties have interfered unlawfully with estate or trust assets we can take steps aimed at recovery for the benefit of the beneficiaries. 

We deal with the entry of caveats – the process of preventing the issue of a grant of probate to executors or administrators where a bona fides challenge to a Will or to the appointment of an administrator or executor is anticipated.  Where a caveat has been entered without good grounds, we can apply the court process aimed at removing it (“warning off”). 

Where a grant ought not to have been made, for whatever reason, we can apply to the court for an order revoking the issue of the grant. 

We are always keen to encourage all sides to a dispute to attempt to settle their differences sooner rather than later and with the minimum requirements for the court’s intervention.  The circumstances of the case may mean that this is not always possible or appropriate to do this.  However, parties must always remember that the more entrenched their respective positions become, the more difficult it can become to extricate themselves from it.  So early attempts at reaching a negotiated settlement should be considered in the right situation. 

An executor may become liable for assets that have decreased in value or become lost altogether –  known as “devastavit” – where the executor has mismanaged the estate and effects of the deceased.  We bring – and defend – such claims accordingly. 

If two individuals agree on the disposal of their property and execute mutual wills in pursuance of the agreement, on the death of the first to die, the property of the survivor, which was the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills.   The survivor may thereafter alter their will, because a will is inherently revocable, but if they do so, their personal representatives take the property subject to the trust. 

A beneficiary cannot take under a will if they have unlawfully killed the testator, or unlawfully aided, abetted, counselled or procured the testator’s death. 

Some types of claim may be barred by law, other types may be unaffected by statutory limitation periods.  We can advise on this complex area.