Contentious Probate,
Wills & Trusts Law
When a loved one passes away it is a difficult and emotional time, which can be made even harder if you or another family member feels that the estate of the deceased is not being managed properly.
There is often an expectation of entitlement to inherit wealth on the death of parents and other relatives. The increase in the value of property over recent years has resulted in more parties seeking the Court’s assistance in setting aside Wills when they are disappointed with the lack of provision made for them.
Disputes over estates and challenges to wills are also on the increase due to the rise in conditions such as dementia, leading some to question the validity of a Will, as well as more diverse family structures resulting in additional relatives expecting a share of the estate.
The Will:
To be valid, a Will must be in writing and signed by the Testator in the presence of two or more witnesses present at the same time. The Testator must have sufficient capacity to understand that he is making a Will and what its effect will be, what assets he has to dispose of, and what claims he ought to consider.
While everyone has the freedom to create a will and choose how their estate and assets are distributed following their death, claims against an estate can be made under the Inheritance (Provision for Family and Dependents) Act 1975 in situations where:
You are the spouse of the civil partner of the deceased.
You are a former spouse or Civil Partner who has not remarried or entered into another Civil Partnership.
You are a child of the deceased (including children over 18).
You were treated as a child by the deceased or are an adopted child, foster child, stepchild of the deceased.
You were cared for by the deceased before they died.
You were financially dependent on the deceased.
You are a cohabitee who was living with the deceased for the two years immediately preceding the death.
Surviving spouses or Civil Partners can seek reasonable financial provision, while other claimants are limited to reasonable financial provision for their maintenance. The Courts will take into account various factors in deciding whether or not to make provision for a claimant.
Probate Claims:
There are various reasons why you may wish to claim against a person’s estate. Applications to contest the validity of the Will can be made on the following grounds:
You want to challenge the mental capacity of the deceased.
You do not believe the Will was executed correctly or that the deceased did not fully understand the contents of the Will.
You think there was another agreement with the deceased before their death relating to the disposal of their estate.
You think there was a lack of testamentary intention.
You think there was a lack of knowledge or approval.
You think there was undue influence.
You think fraud and forgery have been committed.
Revocation.
Claims against Executors:
Executors have a duty to administer an estate in a reasonably timely manner, which will include applying for a Grant of Probate if necessary, calling in the assets of the estate, making payment in respect of any debts, and then distributing the net estate according to the terms of the Will. While there is no obligation on an executor to distribute any assets in the year immediately following the Grant of Probate, if the executor is failing to progress the administration of the estate at all, treating beneficiaries differently or refusing to make a distribution to a beneficiary, it may be possible to seek the removal of the executor.
Where executors themselves are concerned about a dispute between beneficiaries or any other issue, they can seek direction from the Court as to how to proceed with the administration of the estate
OTHER ISSUES:
The interpretation of Wills, most commonly homemade Wills, can require the Court’s assistance and the Court has the power to construe the terms of a Will. The Court can also rectify Wills in very limited circumstances such as where there has been a clerical error.
Here at Bank Solicitors, our Contentious Probate team has substantial experience in assisting those wishing to make a claim against an estate or supporting relatives who want to defend a claim.
Why use Bank Solicitors for Contentious Probate, Wills & Trusts?
Our solicitors can assist you whether you are looking to instigate or defend a claim.
We have vast experience in advising and supporting clients with Wills, Estates, Trusts, and Court of Protection disputes.
We will work with you to identify what you hope to achieve and devise a plan which meets your aims and supports you throughout the dispute.
We can work closely with our other internal teams to provide you with a fully cohesive service that can address any issue which may arise as a result of a dispute.
Where possible we encourage the use of Alternative Dispute Resolution (ADR) as a way to resolve your matter. Court proceedings should always be a last resort.
We can support you in providing information and options for funding your case.
Bank Solicitors can help you with:
Contesting a Will.
Contesting the application for a grant of probate Contesting a trust.
Estate administration disputes.
Property and asset disputes.
Inheritance Act claims.
Contested Court of Protection proceedings.
Lifetime claims such as actions against trustees who fail to comply with their duties.
Deputyship disputes.
Financial abuse.
Death without a Will (Intestacy).
Professional negligence.
Our solicitors regularly arrange mediations where parties, assisted by their legal representatives, can try and reach a settlement of their claims and thus avoid the risk and cost of Court proceedings.
