What constitutes a Probate Dispute?

Disputes relating the validity of a will

When disputing the validity of a will, claims include:

• Whether the formalities contained within S.9 of the Wills Act 1837 have been complied with. For example, if a witness was not present when the testator executed the will then it will not have complied with S.9 and will be invalid.

• Questions of testamentary capacity.

• Whether the testator knew and approved the contents of the will. For example, if it can be proved that the testator did not understand the contents or effect of the will then it will be invalid (i.e. if it was not properly read through by the solicitor before execution).

• If it can be evidenced that the testator was unduly influenced (either directly or indirectly) then the will be invalid.

• Allegations of fraudulently prepared wills or codicils.

• Whether the will is valid when the original cannot be located following the death of the deceased.

  
  

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

In addition to questions of validity, one of the most common disputes which arises in respect of a will (or an intestacy) is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) for reasonable financial provision. Such claims arise when a spouse, ex-spouse, cohabitee, child (including adult children) or other dependant(s) believe that they have not been reasonably provided for by the deceased’s will (or the provisions of the intestacy rules).

The court has a very wide discretion in respect of claims under the Act and can make orders which alter the terms of the will, arguably eroding the testamentary freedom of the testator. It is important for testators to understand the powers of the court under the Act when considering their own estate planning as the court has wide powers to not only vary the terms of a will, but in some circumstances can also reverse the disposal of assets carried out by the testator before their death, and can include within the estate (for the purposes of a claim) assets which have passed via survivorship.

Claims under the Act have a strict 6-month limitation period from the date of the grant, so it is essential that your clients seek legal advice as soon as possible if they believe they may have a claim.

Disputes relating to estates

Disputes regularly occur between beneficiaries and the personal representatives of an estate, together with disputes between personal representatives. Disputes we can assist with include:

• Disputes between executors/administrators regarding the administration of the estate;

• Removal of executors/administrators;

• Claims against executors/administrators for

  breach of fiduciary duty;

• Caveats, warnings, appearances and

  citations, together with applications to

  remove permeant caveats; and

• Burial disputes

  Numerous disputes can also arise regarding the assets which should (or should not) form part of an estate and include:

• Allegations that a beneficial interest in an asset has already been acquired by a third party on the basis of promises made by the deceased during their lifetime, known as promissory estoppel claims;

• The ownership of joint assets, including property and joint bank accounts;

• Assets disposed of during the deceased’s lifetime including:

  • Allegations that the deceased did not have capacity when the gift was made and is therefore invalid;

  • Assets dissipated by a third party in their capacity as attorney/deputy for the deceased, and whether those assets should be returned to the estate;

  • Donatio mortis causa claims, which are gifts made in contemplation of death, but not reflected in the deceased’s will; and

  • Assets transferred to avoid a claim under the Act.

    
    

Additional related disputes

We also have experience of dealing with:

• Court of protection disputes;

• Professional negligence claims against solicitors for negligent advice and will

drafting; and

• Retrospective claims for Continuing Healthcare Assessments, to assist personal representatives reclaim care home fees paid in circumstances where the deceased should have been assessed in their lifetime as satisfying the criteria for their care home fees being paid by the local authority.

Whether you think you have a claim or are facing a claim as a beneficiary or executor, please get in touch as we will be able to advise you and if necessary represent you in any legal proceedings.