The death of a loved one is always a difficult time and when disputes arise over the terms of a will or the actions of those administering the estate you need expert help to guide you through the legal process.
Our team of specialist lawyers can help with any dispute arising before or after the death of a loved one including:
Disputes between executors, beneficiaries and trustees can easily arise in the process of administering the estate of a loved one. It can be a burdensome process and people are often surprised by the amount of work required and the time it takes.
The functions of a ‘personal representative’ include:
A will usually appoints two or more people to act as executors who need to work together. There is, therefore, plenty of scope for disagreement during the administration process and disputes can often arise.
Our expert team are experienced in managing disputes between executors, trustees and beneficiaries and can advise on the legal options available.
Most disputes are resolved through negotiation and mediation between the parties. However, where that is not possible the High Court has the power to order removal and/or substitution of an executor under the Administration of Justice Act 1985.
The grounds for removal are:
1. Incapacity – because of some physical or mental disability which prevents the executor from performing their duties.
2. Disqualification – because of conviction of a crime resulting in imprisonment
3. Unsuitability – because of serious misconduct or a conflict of interests. This is the most common ground on which applications for removal are threatened and made. However, the case law is clear that friction between executors and beneficiaries resulting in rude or uncooperative behaviour or delay is not enough.
The conduct must be serious such as stealing from the estate or causing loss, for example by making payments not authorised under the will, or breaching the executor’s legal duties.
It is much better for potential disagreements between executors to be avoided before they become expensive disputes.
The simplest way to achieve this is for one or more of the named executors to renounce their appointment. This option is available after the person who made the will has died and the executor has not started to deal with the deceased estate (known as intermeddling).
Once an executor starts dealing with the estate he can only be removed or replaced by order of the court.
Renunciation simply requires completion of a form of renunciation signed by the executor in the presence of a witness and submitted to the probate registry with the will.
The most common cause of complaint against personal representatives and trustees is delay and, in most cases, no loss the estate occurs.
However, the Trustee Act 2000 imposes a statutory duty of care which applies to personal representatives who can be held personally liable for wasting of the assets of the estate (known as devastavit) resulting from failure to perform their legal duties.
Therefore, in addition to an application for removal of an executor or trustee it is possible to bring a claim against them personally for any loss to the estate arising from their actions if they are in breach of their legal duties.
Our client was the sole beneficiary of the estate of her late father. She was a minor at the time of his death and was living with her mother who was estranged from her father. The main assets in the estate were 3 buy to let properties. Each was tenanted and mortgaged.
The will appointed a firm of solicitors as executors but administration of the estate was delayed because our client’s mother made an application for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. During the period of the delay the solicitors were inactive and failed to manage the rental properties.
We successfully issued a claim against the solicitors for losses to the estate caused by:
• Failure to secure tenants for the rental properties which remained empty for many months
• Failure to recommend a sale of the properties. The property market was in decline in the area and with the loss of rental income and mortgage arrears the properties went from positive to negative equity.
• Settling the claim by our client’s mother under the Inheritance Act without requiring our client to obtain independent representation and court approval (which is required for settlement of claims by or against minors).
If you are involved in an executor or trustee dispute call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
One of the most common disputes arising after the death of a loved one is that the will, or if there was no will, the intestacy rules fail to make reasonable financial provision for someone expecting to receive a legacy.
Even if a will has been validly executed, it can still be challenged under the Inheritance (Provision for Family and Dependents) Act 1975. If the court finds that the will or intestacy rules fail to make reasonable financial provision for the claimant, it has the power to vary the terms of the will to make a financial award in favour of the claimant.
Claims can be made under the Act by spouses, civil partners, children and anyone financially dependent on the deceased.
When considering whether to make an award, the court takes into account various factors prescribed by the Act including:
When solicitors are instructed to draft wills they will often prepare a letter of wishes explaining the will maker’s reasoning, particularly if the provisions are unusual or, for example, favouring one child over another.
Even when a letter of wishes clearly explains the reasons for not providing for a particular person, they can still bring a claim under the Inheritance Act because it is not possible to remove the court’s jurisdiction under the Act. However, a letter of wishes will be one of the factors the court takes into account when considering the claim as a whole.
IMPORTANT: Claims under the Inheritance Act must be issued at court within 6 months from the date of a grant of representation (a grant of probate if there was a will or a grant of letters of administration under the intestacy rules).
Therefore, it is important to act quickly if you believe you may have a claim under the Inheritance Act.
We were instructed by a client in his mid-50s who had been cohabiting with his long-term partner for over 20 years. She had run a successful business and had bought a property in which they lived together in her sole name.
She died unexpectedly and without making a will. They had no children together and, under the intestacy rules, her estate including the property in which she and our client lived, passed entirely to her mother.
Although our client was able to work, his income was modest and he was financially dependent upon his partner for his housing needs. We therefore issued court proceedings for reasonable financial provision under the Inheritance Act.
To avoid the substantial legal costs and risk associated with pursuing a claim to a contested trial, the parties agreed to mediation with an independent third-party mediator. At the mediation we successfully negotiated a settlement in excess of £100,000 for our client representing approximately half of the net value of the estate.
If you think you may have a claim under the Inheritance Act call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
One of the grounds for contesting a will is that it has not been validly executed in accordance with the formalities required under the Wills Act 1837. The Act provides that a will is invalid unless:
If any of these formalities have not complied with the will is not valid and has no legal effect.
That means the provisions of any earlier will take effect or if there is no earlier will, the intestacy rules apply.
There is a presumption of due execution which means that, if there is a challenge to the validity of a will on these grounds, a court will presume that the will is valid unless strong evidence to the contrary is produced by the person challenging the will.
We were consulted by a client whose mother had recently passed away. He had instructed a firm of solicitors to prepare a will for her the previous year and they sent it to him to arrange for execution.
Our client witnessed his mother’s signature in her presence and a few days later arranged for a family friend to meet with his mother to be the other witness.
The will was challenged by our client’s siblings as being invalid because the two witnesses had not both been present at the same time when the will was signed.
Our client acknowledged that the second witness had signed the will a few days later and, in the circumstances, we had to advise him that the will was not valid.
As a firm of solicitors had prepared the will we made enquiries whether they had advised our client on the requirements for valid execution because, if they had not, there was a potential claim in negligence against them.
However, they had given instructions on how to execute the will at the time of sending it which our client had overlooked, so no claim was possible.
The result was that an earlier will continued to apply and, instead of receiving the whole of his mother’s property in accordance with the terms of her new will, he received a one quarter share along with his siblings.
The case serves as a reminder of the importance of ensuring a will is validly executed and the expensive consequences of failing to get it right.
If you think you may have a claim arising from invalid execution of a will call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
A less commonly used ground for challenging the validity of the will is that the will maker lacked knowledge and approval of the contents of the will.
There is a presumption that the testator had the requisite knowledge and approval of the terms of the will if it is correctly executed by a testator with capacity.
The presumption will not apply to a limited number of testators and positive evidence to prove their knowledge and understanding will be required to obtain probate including those who:
In other cases, there may be circumstances where the presumption of knowledge and approval is displaced and it will be up to the person submitting the will to probate to prove that the testator knew and approved of the contents of the will.
The Court of Appeal case of Hawes v Burgess [2013] is a good example. The will maker, Mrs Burgess, had three children, Peter, Libby and Julia and her will of 1996 left her estate to them equally.
In 2006 Mrs Burgess executed a new will which left out Peter despite the fact that they retained a close relationship.
The solicitor who drafted the will was satisfied that she had capacity but no formal assessment was made and his instructions for the will came from Julia. Although he met Mrs Burgess to take instructions and to execute the will, Julia was present throughout both meetings.
The court was not satisfied that Mrs Burgess lacked capacity at the time of making the will because the medical expert who gave evidence about capacity had not met her and his report was based on evidence obtained after her death whereas the solicitor had met with her twice and was satisfied that she was ‘entirely compos mentis’. He was an experienced probate solicitor.
However, the court found that Mrs Burgess did not have knowledge and approval of the contents of the will because:
Because of the suspicious circumstances in which the will had inexplicably been changed from a previous version, it was up to Julia as the person propounding the will to prove that her mother had knowledge and approval of the terms of the will.
On the evidence she failed to do so, the will was declared invalid and, what little was left of the modest £200,000 estate after the costs of trial and appeal, was divided equally between the three children.
Therefore, although less common as a ground for challenging the validity of a will, lack of knowledge and approval can be used in cases where the testator may have capacity but the terms of the will are suspiciously in favour of someone who has written or arranged for the will to be drafted.
If you think you may have a claim based on lack of knowledge and approval of the terms of a will call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
One of the most common grounds on which wills are challenged is that the will maker (testator) lacked testamentary capacity.
For a will to be valid the testator must have the requisite mental capacity at the time that they execute the will.
The test for capacity was established in the case of Banks v Goodfellow (1870) in which it was held that the testator must:
The testator must also be able to exercise powers of decision-making. The test is one of capacity to understand rather than one of memory so it is possible for people suffering from dementia to execute a valid will provided they had sufficient lucidity to pass the above test at the time they executed the will.
If a will has been correctly executed, there is a presumption that the testator had capacity if the will is rational on its face and in the absence of evidence to the contrary.
The case of Re Simpson [1977] established ‘a golden rule’ for will makers in relation to sick and elderly clients to be satisfied that they have capacity.
The judge stated, ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.’
Therefore, in cases of elderly or seriously ill clients, if the will maker has not followed the golden rule, and there is evidence of lack of capacity, that may provide grounds on which the validity of the will can be challenged.
However, it is important to note that it is not an absolute requirement and failure to obtain a medical assessment does not mean that capacity cannot be established by other evidence.
We were instructed by the estate of a lady in her mid-90s at the time she made her final will. It reduced some of the legacies from earlier versions and, after she passed away, one of the disappointed beneficiaries challenged the will on the basis of lack of testamentary capacity.
The claimant obtained copies of the medical records which included references to dementia. That, together with the fact that the testatrix had been physically very frail at the time of the will, the claimant argued was evidence of lack of capacity.
The testatrix had been personally known to the solicitor who prepared the will for over 20 years having conducted various business transactions on her behalf and prepared her five previous wills. In addition, the changes to legacies were as a result of professional advice obtained to secure her ability to fund the costs of her care.
We obtained witness statements from the solicitor who prepared the will, the witnesses to the meeting at which it was explained to her and executed as well as four other witnesses all of who were able to give evidence that, notwithstanding her frailty, the testatrix retained the capacity at the time of execution of the will. The challenge was defeated and the will successfully admitted to probate.
If you think you may have a claim based on lack of capacity call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
Solicitors and professional will writers owe a duty to their clients to provide their services with reasonable care and skill. That means the client is entitled to rely on them to have the appropriate expertise and to exercise the highest degree of care and skill that a competent professional in that discipline would exercise.
Therefore, if a will is professionally drafted and its terms do not achieve the intentions of the will maker (testator) a claim in negligence may be pursued for the losses incurred by the estate or a beneficiary.
Even though the contract for the drafting of the will is between the solicitor and testator, case law has determined that the solicitor’s duty of care extends to those they know will be relying on their expertise, for example, the beneficiaries of the will.
Negligence can arise in a variety of different contexts including:
In many cases, it is possible to cure deficiencies in the drafting of the will by way of variation. Where the beneficiaries are all in agreement it is possible to rewrite the terms of a will up to 2 years after the death of the testator. That includes where the drafting of the will has resulted in a higher liability for Inheritance Tax.
However, if any of the beneficiaries refuses the proposed variation, the only alternative is an application to court for rectification of the will.
Rectification is available only in limited circumstances to correct clerical errors or where the intentions of the testator were misunderstood. If the will is correctly drafted but based on incorrect legal advice, the court will not intervene. In such a case, the only remedy is to pursue a claim in negligence against the professional will writer.
Our client’s mother passed away leaving a will which created two trusts; the first in respect of her half share in the matrimonial property, worth approximately £200,000, the second in respect of her residuary estate worth approximately £20,000.
The gift of the residuary estate contained a provision that, if her eldest son predeceased her, his share was to pass to our client, her youngest son. However, the gift of the interest in the matrimonial home contained no such provision and was silent on what would happen if her eldest son predeceased her. There was no provision for it to become part of the residuary estate.
Her eldest son did predecease her, the gift of the interest in the matrimonial home failed and a partial intestacy arose.
Although it was clear from the instructions given to the solicitors that our client’s mother intended her share of the matrimonial home to go to our client if his brother predeceased her, the intestacy rules meant that the whole of the interest passed to her surviving husband instead.
Our client was, therefore, able to pursue a claim in negligence against the solicitors for the £200,000 that should have come to him.
If you think you have suffered loss as a result of negligence by solicitors or professional will writers call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
When an elderly person starts to lose mental capacity, disputes can often arise between family members about how to manage that person’s affairs.
Our team of both non-contentious and contentious lawyers can offer expert guidance on the legal options available and assist in the resolution of any dispute.
If a person still has capacity they may appoint attorneys to act on their behalf by completing LPA forms.
The forms are either retained by the appointed attorneys until the donor loses capacity or registered with the Office of the Public Guardian (OPG) straight away but the powers not used while the donor retains capacity. The Attorney may not exercise any powers to act on behalf of the donor until the LPA is registered.
There are two types of LPA:
Donors may choose to make one or both but, when completing the forms, there is the option to identify people who will be notified when the LPA is registered.
It is a sensible precaution to include at least one person as people losing capacity can be vulnerable and notifying a family member or friend who is not an attorney gives them the opportunity to raise objections such as:
This process can become strongly contested between friends and family members with different views about what is in the best interests of their elderly relatives particularly over issues of whether they should go into care or remain at home and, if the dispute cannot be resolved between them, it will be referred to the Court of Protection to determine the dispute.
Our expert team can assist in the submission of appropriate evidence to the Court of Protection and representation should a hearing be required.
If a person lacks mental capacity but has not made an LPA, it is necessary to apply to the Court of Protection for a deputy to be appointed. Deputies have similar functions to attorneys appointed under LPAs and there are two types:
Similar disputes to those relating to LPAs arise on the appointment of a deputy, for example:
Although Deputies and Attorneys have legal authority to manage a person’s financial affairs, they cannot gift substantial sums of money on that person’s behalf or make a will.
An application to the Court of Protection is necessary for a statutory will to be made to avoid the intestacy rules applying or to supersede an outdated existing will.
These applications can be highly contentious as family members who stand to benefit from the provisions of the will often have differing views on how the estate should be distributed.
The Court will consider the evidence and representations of all of the parties and decide how the will should be drafted to reflect what is known of the testator’s intentions and what is in their best interests.
It is, therefore, important that those affected by the provisions of the will seek professional advice to ensure that representations to the court are properly made and supported by evidence. Our expert team can assist with such applications.
Our client and her husband sold their property in the Midlands and relocated to Wiltshire into a house owned by and immediately next door to their eldest son. They had loaned him the sale price of their home to invest to generate an income instead of paying rent.
Over a period of years the relationship broke down and became increasingly abusive with our client’s son threatening to evict them if they did not pay rent and demanding ever more sums of money. He denied any liability to pay back the loan and made unauthorised withdrawals in excess of £50,000 from our client’s savings.
Our client and her husband’s previous wills gifted their estate equally to their two sons but she wanted to draft new wills to take account of money received by their eldest son during their lifetime.
However, by that stage, her husband had lost testamentary capacity and could not give instructions to prepare a similar will. In the circumstances, it was necessary to apply to the court for a statutory will.
If you think you may have a claim based on lack of capacity call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
Even if a will has been validly executed in accordance with the formalities under the Wills Act 1837, there may still be grounds on which it can be challenged.
One of the most common grounds is that the will maker (testator) was unduly influenced into making it. If proven, the will is declared invalid and the provisions of any earlier will apply or, if there is none, the intestacy rules apply.
Unlike in other areas of law, there is no presumption of undue influence in situations where a position of trust exists, for example the child of an elderly parent, and dispositions are made in favour of the person in that position.
Even if the provisions of the will seem suspicious the onus of proof is still on the person challenging the will to prove that it did not reflect the will maker’s actual intentions but that they felt so pressurised by the influence of others that they made it anyway.
Therefore, despite the frequency of allegations of undue influence, they can be difficult claims to prove.
For example, we often see situations where, in earlier life, parents tell children that they will inherit equally but the final will favours one child above the others, usually the child who has most contact with their parents in their final years.
This frequently gives rise to allegations of undue influence by the other children. However, it may equally be a reflection of the care and assistance provided by one child during their parents’ later years which makes these claims particularly difficult to prove.
In one of the clearest examples of undue influence, we were consulted by a client whose mother made it clear during her lifetime that she intended to pass her share of the property she jointly owned with her second husband to her children from her first marriage.
When she passed away her will gifted her share to her second husband instead. Our client was convinced that he had coerced her into making a will to that effect.
We obtained the file from the solicitors who prepared the will and it revealed that our client’s mother had never been seen alone by the solicitor to satisfy himself that her instructions were free from any undue influence.
Curious to know why his mother had used a different firm of solicitors from the previous wills, our client instructed us to obtain the will files from the former solicitors. It revealed an attendance note made the month before the new solicitors were instructed in which the solicitor had attended the home of our client’s mother and her husband to take instructions.
By chance, the husband received a telephone call while the solicitor was there and left the room. Our client’s mother then revealed that she did not want to make a new will but that she had been ‘ground down’ by her husband’s persistent arguing on the subject every single day.
When the husband returned the solicitor challenged him and he admitted he disagreed with his wife’s decision to gift her share of the property to her children. The solicitor said she could not prepare a new will in these circumstances because it did not reflect her client’s intentions.
She prepared a detailed note of the meeting which concludes, “Mr X said that he understood why I could not prepare a new will but said that he would continue to pursue the matter with another solicitor and that he would persevere to get Mrs X’s will changed ‘until the end of his days’.
Cases of undue influence rarely have independent evidence as clear as this but it demonstrates the value of investigating the circumstances in which solicitors have taken instructions from clients who may be subject to undue influence.
If you think you may have a claim based on undue influence call us today on 01793 853200 or fill out our quick enquiry form to arrange a free initial consultation with our expert team.
Our expert team of contentious probate lawyers can advise you on the variety of methods to fund claims including “no win no fee” agreements. We offer a FREE initial consultation to assess the viability of your claim and advise on the process and funding options
If you are affected by any of these issues call us today on 01793 853200 or fill out our quick enquiry form, to arrange a free initial consultation. Our team are expert in handling sensitive disputes arising at difficult times for family and friends
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