Wills and Probate Disputes Solicitors & Lawyers

There are a number of grounds upon which the validity of a Will can be challenged. These are:

Lack of capacity – A person making a Will (‘the Testator’) must be able to understand what they are doing. Where the Testator is old and/or suffering from some form of mental or physical weakness, due to for example not having capacity because of suffering from a stroke- this may be called into question. They must not suffer from any “disorder of the mind” which may cause them to make gifts that they otherwise would not have made.

Incorrect Execution –

A Will is a formal legal document and must comply with section 9 of the Wills Act 1837. For a Will to be legally valid, it must be:

• in writing
• signed by the person making the Will (testator), or by another person in their presence and by their direction
• in the presence of two or more independent witnesses present at the same time, and who must attest and sign the Will

A court can set aside a Will that has not been properly executed. The result would be to revert to an earlier properly executed Will if there is one, or intestacy.

Individuals who write their own Wills do come across this issue where the correct procedure is not followed and therefore keeps the door open for challenges after they pass away- it is therefore highly recommended for everyone to use a qualified solicitor to draft their Will.

Lack of knowledge and approval – The Testator must be aware of and understand the content of the Will he/she signs. While it is normally presumed that this is the case, there will sometimes be suspicious circumstances surrounding the Will which warrant further investigation, e.g. where someone who benefits under the Will is responsible for or involved in its preparation, where the person concerned has relevant capacity, but is old and/or suffering from a mental or physical weakness and insufficient care has been taken to ensure that the Testator fully understand the contents of the Will.

Undue influence – It must not only be proved that the Testator was influenced by a third party, but that the influence was such that the Testator was either: (a) so scared of the consequences if they did not sign the Will that they executed the same and/or; (b) the third party had such a level of influence over the Testator that they were not making decisions of their own free will i.e. the pressure must be such that it overpowers the testator’s own decision-making.

Fraud – A court can invalidate a Will obtained by fraud, for example if the document or the signatures were forged, or if a person was deceived into making a Will.

Revocation – This applies where the Testator has destroyed the Will (as no longer to apply) or where the Will has been revoked by operation of law, either by a later Will being made by the Testator, or by the Testator’s marriage, after the Will was made. There is no statutory time limit for challenging the validity of a Testator’s Will, however, it is important to act swiftly to avoid the estate being administered and assets being disposed of.

Fraudulent Calumny – Fraudulent calumny occurs when a person has made false misrepresentations to a Testator which poisons their mind against another so that they are excluded from the Will. The case of Re Edwards [2007] sets out that “The essence of fraudulent calumny is that the person alleged to have been poisoning the Testator’s mind must either know that the aspersions are false or not care whether they are true or false.”

If you are:

(i) considering making a claim against a Will; or

(ii) informed that someone is looking to make a claim against a Will where you are an Executor or a beneficiary;

If you have been left out of a Will, feel that the provision made for you in a Will is insufficient or no Will was executed and you do not benefit under the intestacy rules – you may be able to make a claim under The Inheritance (Provision for Family and Dependants) Act 1975.

In certain circumstances the Courts will consider a claim which seeks to change the way in which one’s estate is to be distributed, whether or not one has made a Will.

The above Act allows certain categories of people to bring a claim against an estate, where they feel that an otherwise valid Will, or the general rules on intestacy, fail to make sufficient provision for them.

The categories include:

• A Spouse or Civil Partner. This is the case even if the Spouse had separated from the deceased as their claim will end upon divorce proceedings with a sealed financial remedy from the court.
• A former Spouse. This is for the reasons mentioned above. A former Spouse will not able to claim if they have remarried prior to the date of death.
• A cohabitee. This will be a person who had been living with the deceased, effectively as husband or wife, for a period of two years prior to death.
• A child. This is regardless of age and includes adopted children. Adult children (over 18s) are therefore able to bring a claim.
• A person treated by the deceased as a child of their own e.g. a stepchild.
• A person who was fully or partly financially dependent upon the deceased. The deceased’s contribution must have been substantial and have continued up to the date of death.

This means that siblings, parents, cousins and other family members are unable to claim, unless they were financially maintained by the deceased immediately prior to their death.

In deciding what is ‘reasonable’ the Court Will generally look at all the circumstances, including:

• The size of the estate
• The financial needs and resources of all the parties concerned
• Any obligation which the deceased had towards the parties
• Mental or physical disability of the parties
• Any other matter which the Court considers relevant. This may include the conduct of parties.

There is a 6 month time limit for people to bring a claim under the above act. This time limit will begin from the date a Grant is extracted.

If you are:

(i) considering making a claim against an estate; or

(ii) informed that someone is looking to make a claim against an estate where you are an Executor or a beneficiary;

Before obtaining a grant of Probate or Letters of Administration, a Personal Representative does not owe any particular obligations to the deceased’s estate, its beneficiaries or the creditors (assuming that there has been no intermeddling).

Before obtaining a Grant, a Personal Representative’s duties will generally be:

• Providing information for Inheritance Tax purposes; and
• To dispose of the deceased’s body.

Once a Personal Representative has obtained a Grant, their duties under the Administration of Estates Act 1925 are:

• Collect and get in the real and personal estate of the deceased and administer it according to law.
• When required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court.
• When required to do so by the High Court, deliver up the grant of probate or administration to that court.

Collecting and getting in the estate of the deceased requires a Personal Representative to:

• Identify the deceased’s liabilities and assets.
• Obtain payment of any debts due to the deceased.
• Gain control of the assets.
• Convert those assets into money (where appropriate).

Administering an estate requires a Personal Representative to:

• Maintain the assets safely, once collected.
• Pay the deceased’s debts.
• Ascertain the residuary estate and properly distribute the estate (if assets remain).

If a Personal Representative does not adhere to these duties, they will be liable for breach of duty and may face sanctions, such as:

• A claim for devastavit (wasting of estate assets).
• Their removal as Personal Representative.

Beneficiaries’ Rights

Until the assets in an estate are transferred to a beneficiary, they have no legal or beneficial interest in that asset. The property is entirely owned by the Personal Representative. Instead, a beneficiary has personal rights over property, which can only be claimed or enforced by action, and not by taking physical possession, that can be used to ensure that the Personal Representative properly administers the estate.

The starting point is that a Personal Representative must keep estate accounts and that these should be made available for inspection by a beneficiary or creditor on request. Copies should be provided and copying charges may be made if necessary. If this request is refused or if the accounts are not clear or accurate, the beneficiary is entitled to make an application to the court for an inventory and/or an account.

If you are:

(i) being denied information from a Personal Representative or believe the Personal Representative is not administering an estate properly; or

(ii) the Personal Representative of an estate and receiving requests for information regarding an estate or are facing criticism in relation to the estate administration;

If you are the beneficiary of a trust, the general principles are:

• Trustees owe a fiduciary duty to keep beneficiaries informed and this includes providing trust accounts; and
• Whilst beneficiaries are not entitled to disclosure per se, they have a legitimate expectation to see trust documents in order to hold the trustees to account, and the ability to order disclosure of this falls within the Court’s inherent jurisdiction to supervise trustees in the performance of their duties.

The approach that should generally be taken for different types of documents is as follows:

• Trust documents should generally be disclosed if requested (this includes deeds of appointments and documents which vary the trust);
• Trust accounts should be disclosed;
• Settlors’ letters of wishes should be considered but remain confidential documents and there is no presumption to disclose them;
• Legal advice is privileged against third parties but not beneficiaries if it is paid for from the trust fund;
• Legal advice relating to trustees’ disputes with beneficiaries is privileged; and
• The Court may order the disclosure of company documents where the trustees have a controlling shareholding in a company.

Trustees should note that beneficiaries do not have to prove that there is a “real suspicion“, but rather the Court will decide whether it is proper for them to interfere. Additionally trustees are reminded that the Court may not view it positively if disclosures are only made begrudgingly and upon the imminent threat of legal action.

From the perspective of beneficiaries, they must ensure that document requests are framed properly and not overly wide or seeking information (as opposed to documents).

If you are either:

(i) being denied information from a trustee; or

(ii) receiving requests for information from beneficiaries (or anyone else for that matter);

Breach of Trust

Where a trustee makes a decision that the beneficiary considers is improper, the trustee may be liable for breach of trust.

Breach of trust is an act (or a failure to act) by a trustee that is not authorised either by the trust document or by law. For example, a breach of trust can occur if a trustee:

• Distributes trust assets to a beneficiary who is not entitled to them under the terms of the trust document.
• Invests the trust fund in a way not permitted by his express or statutory powers of investment.
• Breaches a fiduciary duty such as the duty not to profit from the trust, for example, by selling one of his own assets to the trust.
• Breaches the common law or statutory duty of care, for example, by exercising a power of investment without exercising such skill and care as is reasonable in the circumstances.

The remedies available to a beneficiary include, but are not limited to:

• Compensation
• Voiding any transactions from the breach, for example, transfer of property
• Removal of the trustee(s)

Removal of Trustee(s)

Often as a last resort, the court will intervene to remove a Trustee to their position if they are not acting appropriately. There are various ways in which a trustee may be removed and so it is important to ensure the correct procures are followed when making any such application.

If you:

(i) believe a trustee’s actions or decisions are improper; or

(ii) are a trustee and are unsure about what decision to make or are facing criticism from someone;

Promissory estoppel is a remedy which prevents someone from breaking inheritance promises when they have materially benefitted from someone’s behaviour. It is based on the below elements:

• A promise or assurance was made to the Claimant
• The claimant relied upon that promise or assurance
• The Claimant suffered some sort of detriment as a result
• The circumstances of the promise and reliance have led to an unfair result

Even if the court agrees that a claim should be successful, the claimant will not necessarily receive what was promised to them. The court will take into account the degree of detriment suffered by the claimant and will use its discretion to make an appropriate order.

Promissory estoppel means that verbal promises can be enforced by the court, and so it is advisable to take the necessary precautions to prepare for all eventualities and potential claims.

If you feel that either:

(i) you were made a promise and the promisor has/is seeking to renege on that promise; or

(ii) someone is trying to enforce a promise they say you/someone else made;