Contested trusts & probate

Introduction

The death of a relative or friend can be an extremely stressful time. When coming to terms with the loss of a loved one, the last thing you need is to be worrying about the distribution of the estate or having to get involved in a dispute.

Unfortunately, however, this is so often a sensitive issue, and disputes can arise particularly if it is believed that the will, Intestacy or estate distribution is incorrect.

Administration of estates

When there are problems relating to the administration of estates, our aim is to conclude your case as quickly and amicably as possible. We seek to deal with these matters sensitively and with discretion and adopting non-court process where that is possible.

We pride ourselves on achieving practical solutions, and our experienced lawyers are members of specialist bodies Resolution (Solicitors Family Law Association) and the Society of Trust and Estate Practitioners (STEP).

Deputy Head of Morrisons’ Family Law Department, Malcolm Martin, has over 30 years experience in trusts and probate. Below he outlines the key issues surrounding disputes relating to Wills, trusts, estates and Court of Protection, including:

• Inheritance Act claims
• claims where a Will has not been signed or witnessed correctly
• claims regarding lack of mental capacity
• disputes over the identification of beneficiaries
• claims by and against executors
• where executors are not doing anything at all or are doing it badly
• claims involving agreements regarding property made prior to death
• businesses and unusual assets
• ambiguous, home made, and unqualified “will-writer” prepared wills

Although there are many other aspects of Wills, Contested Probate and Estate Administration that can give rise to disputes.

Inheritance Act claims

Inheritance claims can be brought by individuals on the grounds that adequate financial provision has not been made for them.

Claims can be brought:

• whether or not there is a Will in existence
• by a current or former husband or wife (including a same-sex civil partner)
• by a cohabite of more than two years
• by an adult or infant child of the deceased, or other dependants

Calculating the value of a claim can be complex, and takes into account several elements, including the needs of the Claimant, the needs of other beneficiaries and the size and nature of the estate.

Validity of a Will

 A will can be challenged on a variety of legal grounds, including:

1. Technicalities

Sometimes a will is incorrectly prepared or witnessed. In this eventuality the Will is usually totally invalid, and the estate is administered as if there is no will in existence.

2. Lack of mental capacity

In certain cases, a person who has drawn up a will is not deemed mentally capable enough for it to be valid – for example when an elderly person is suffering from substantial mental health problems. Also, in some cases where a person is taking heavy prescription medication or is dealing with substance abuse (such as drugs or alcohol), they may not have the capacity to make a Will at the time they actually sign it. The person preparing the will may not recognise this lack of capacity, and the issue may only come to light after the person who has made the Will has died.

3. Lack of knowledge and approval

It can be the case that a testator – someone who has made a will – does not know and/or understand the nature of the Will that has been signed.

4. Undue influence

Sometimes family members put undue pressure  or coercion on someone making a will to make provision in their favour or someone else. A will can be rendered invalid on this ground.

Disputes over the identification of beneficiaries

Someone preparing a will as a part of their business is under a legal duty of care to the beneficiaries to take reasonable skill and care when preparing it. But on occasion they can get it wrong.

In these circumstances, claims can be made on behalf of disappointed beneficiaries.

Alternatively, steps can be taken to rectify a will if, as a result of clerical error, the will that has been prepared does not reflect the wishes of the person who has died.

It may not be necessary to go to court and we are always happy to recommend alternative dispute resolutions.

For further information please contact Malcolm Martin on 020 8971 1030, or by email: malcolm.martin@morrlaw.com