Contentious Probate Solicitors

Where there are questions over whether a Will is valid or if it truly represents the last wishes of the deceased, it is important that these are resolved as soon as possible. In some cases, it may be necessary to have the Will interpreted by the court (known as ‘construing the Will’) or even ‘rectified’ so that it accurately reflects the most likely intentions of the deceased especially if it a ‘homemade Will’.

Our contentious probate lawyers can advise on challenging a Will where:

• The Will was not properly signed or witnessed
• The deceased lacked the relevant mental capacity to make a valid Will
• The deceased lacked proper knowledge and approval of the contents of the Will
• The deceased was subjected to undue influence when making their Will or ‘fraudulent calumny’ is involved
• The Will has been forged or some other fraud is suspected

We can also advise on entering a caveat to prevent the issue of a grant of probate whilst we investigate the circumstances in which instructions were given for the Will and it was executed by the deceased.

Find out more about our expertise with Will disputes.

Errors in the way a Will has been drafted can leave it unclear as to what it means, open to interpretation or produce an outcome different to what it is believed the deceased would have intended. In such cases, it may be necessary for a court to determine what exactly it means (referred to as ‘Will construction’) and/or for the Will to be corrected to reflect the deceased’s intentions (known as ‘rectification of  the Will’).

Our inheritance dispute solicitors can advise on:

• Where there are grounds to seek rectification of a Will
• Negotiations between executors and beneficiaries to resolve problems caused by a badly worded or ambiguous Will
• Applying to the court for construction and/or rectification of a Will

Where a Will does not make reasonable provision for the dependants of the deceased or there is no Will and dependants are not reasonably provided for under the rules of intestacy, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Such claims are commonly called ‘Inheritance Act claims’.

Our inheritance disputes solicitors can assist with:

• Advice on whether you have grounds for an Inheritance Act claim
• Negotiating a settlement
• Making an Inheritance Act claim through the courts

Find out more about our expertise with Inheritance Act claims.

Where the deceased was involved in significant financial transactions before their death which may reduce the value of their estate, this can raise questions, especially if there is a suspicion that they were unduly influenced by another party in the decisions they made.  Financial abuse of the elderly and vulnerable is regrettably an increasingly common problem.

Although these can sometime be upheld, gifts made shortly before someone died (so-called ‘deathbed gifts’) can potentially be challenged, especially where they are of a high value in themselves or relative to the total value of the estate and it is believed that the deceased lacked the mental capacity to make such a gift.

Our contentious probate solicitors can assist with:

• Establishing whether the deceased had the mental capacity to make financial decisions prior to their death
• Investigating whether the deceased may have been unduly influenced in their decision-making
• Establishing whether a gift was legitimate
• Making financial claims against any parties who have acted wrongly, including securing the return of gifted assets to the estate

Another source of inheritance disputes is where the deceased owned a property with one or more other people. If this property is included in the deceased’s Will, it can cause confusion about exactly how it should be treated, especially if the terms of the co-ownership are not clear.

Our inheritance disputes lawyers can assist with:

• Establishing the ownership of property included in the estate including if the deceased during their lifetime promised particular property to a friend or relative and in reliance on that promise the third party acted to their detriment (otherwise known as ‘proprietary estoppel’)
• Agreeing what share of co-owned property, if any, should pass under the Will or the intestacy rules or whether the right of survivorship applies
• Selling co-owned properties as part of the probate and estate administration

Administering an estate is a serious responsibility that must be carried out diligently. Where the people dealing with an estate cannot agree on what needs to happen or there are questions over the conduct of an executor or estate administrator, this can have a major impact on the beneficiaries, so it is important that these issues be resolved promptly and cost effectively.

Our inheritance disputes solicitors can assist with situations including:

• Disputes between executors or administrators
• Unreasonable delays in dealing with getting probate or estate administration
• Improper disposal of assets (e.g. where a property or other assets have been sold at below market value)
• Unreasonable expenses claimed by executors or estate administrators
• Executor fraud
• Having executors or estate administrators removed

Find out more about our expertise with executor disputes.

Trusts can be complicated to administer, especially when they involve high value assets or there are complex instructions that need to be followed. Where trustees disagree or there are concerns over how a trust is being administered, seeking expert advice at an early stage can help to ensure any negative impact on the beneficiaries is kept to a minimum.

Our experts can assist with:

• Disputes between trustees
• Disputes about the correct interpretation of the trust document if the wording is ambiguous
• Concerns about the actions of trustees raised by trust beneficiaries justifying the trustees’ removal or replacement
• Trustee fraud or a refusal to provide accounts and/or to disclose relevant information/documents to beneficiaries

Sadly, the standards of Will writing services vary considerably, meaning that even a Will that was professionally drafted may not always stand up to scrutiny. Mistakes in the way the Will was prepared can mean it is ambiguous, fails to reflect the deceased’s true last wishes or is invalid.

In such cases, it is important to investigate whether the Will can be corrected or ‘rectified’ or interpreted such that the deceased’s last wishes are properly carried out. If the Will needs interpretation by the court or rectification it may also be necessary to make a professional negligence claim against the person who drafted the Will where their errors have impacted on the value of the estate or led to additional costs for the estate.

Our experts can assist with:

• Applying to rectify the Will or to have it construed by the court to ensure it reflects the deceased’s true intentions
• Advice on whether the professional who drafted the Will may have been negligent
• Bringing professional negligence claims against solicitors and Will writers

Find out more about our expertise with professional negligence claims.

We acted for the children of the deceased against their brother who sought to control the management of the estate. We successfully removed him and persuaded the court to appoint an independent professional administrator to progress the administration and distribution of the estate.

We acted for the executors under a complex homemade will. One of our partners was appointed under a power of attorney to obtain a grant and deal with the administration on behalf of the named executors. The estate management was complex owing to the deceased’s business being subject to a winding up petition at the date of death. Our non-contentious team deal with the administration. The contentious team have been required to bring a claim seeking interpretation of the will to ensure that the administrator can understand how the will should be interpreted and therefore guiding the administrator to properly distribute the estate in due course.

We acted for a son who had been disinherited by his mother as a result of a mistaken belief that her son had stolen property from her when in fact, he was a mere trustee. We sought to challenge validity of the will on the basis the deceased had made the will whilst suffering from a delusion which affected her decision.

We acted for a client who had been gifted property by a close friend during her lifetime. The family sought to set aside the transfer to him on the basis the deceased had entered into mutual wills as a result of which she was prevented from disposing of the property in question.

We acted for a child of the deceased in relation to her late father’s estate.  He died without a will but with a surviving spouse with whom the family had no contact for many  years;   we sought a presumption of death from  the court so that the client was able to distribute the estate between herself and her siblings without fear of a claim by the spouse at some later date.

As the partner died without a will there was no entitlement at all. We successfully pursued a claim under the Inheritance Act and successfully got a settlement allowing our client to purchase a home for herself.

You may be able to challenge the validity of a Will if you believe one or more of the following applies:

• The deceased lacked mental capacity at the time the Will was created e.g. they were suffering from dementia
• The Will lacks valid execution e.g. it was not signed in the presence of appropriate witnesses
• The Will was not created with the proper knowledge and approval of the deceased e.g. someone else created it on their behalf and did not correctly inform the deceased of the Will’s content
• The deceased was under ‘undue influence’ when creating the Will e.g. they were pressured to favour certain parties to the detriment of others
• The Will is fraudulent or forged

Circumstances where an Executor might be considered to be failing in their duty to the beneficiaries include:

• If the Executor is spending money from the estate inappropriately
• If there are unreasonable delays between probate being granted and bequests being distributed to the beneficiaries
• If the Executor appears not to be taking the required actions to progress the probate process
• If the Executor is unable to produce accounts when reasonably requested

If no provision or insufficient provision has been made for you from an estate, you may be able to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, commonly referred to as ‘the Inheritance Act’.

An Inheritance Act claim may be an option if there is a valid Will that excludes you or does not make sufficient provision for you. It can also be an option if the deceased did not leave a valid Will and their estate is being dealt with through the rules of intestacy.

People who may have grounds to make an Inheritance Act claim include:

• The spouse or civil partner of the deceased
• Someone who was cohabiting with the deceased
• A child of the deceased who is still in education
• Anyone who was dependent upon the deceased at the date of death

To make an Inheritance act claim you need to be able to show that the deceased did not make ‘reasonable provision’ for you. What constitutes reasonable provision will depend on the circumstances, for example, if you are a child of the deceased still in education, reasonable provision might mean covering the cost of your education and living expenses.