Inheritance & Will Disputes

Inheritance & Will Disputes
(Contentious Trusts & Probate)

The death of a loved one is always a distressing time. The stress of the situation can be increased further when the Will is challenged or claims are made against the estate and can prevent the family from moving on and being able to grieve.

If a family member or loved one has passed away and what has been left for you in their Will is not what you anticipated, you may be able to challenge the Will. If you have concerns that it is invalid or that yourself or another family member has been unfairly excluded, we may be able to help.

Alternatively, you may be an executor or beneficiary where a claim is being brought against the estate and you may need advice or assistance in defending the claim.

There are many different types of claims that we can assist with at MBH Solicitors with respect to trusts and estates.

Inheritance Act Claims
Under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), a person can bring a claim for ‘reasonable financial provision’ from a person’s estate, if their Will or intestacy, has failed to make sufficient provision for them.

The following people are entitled to make a claim under the Inheritance Act:

  • A spouse or civil partner of the deceased
  • A divorced spouse or a separated civil partner of the deceased (providing they have not remarried or entered into a new civil partnership)
  • Any person who lived with the deceased for a minimum of two years prior to their death as ‘man and wife’
  • A child of the deceased (including children over the age of 18)
  • Anyone who was treated as their child by the deceased
  • Anyone being financially maintained by the deceased prior to their death

The Court takes into account a range of factors when considering such claims and has a wide discretion in the types of order that can be made. It is important to get advice quickly in relation to claims of this nature as there is a time limit of 6 months from the date that the Grant of Probate is issued, to start your case in Court, or you may lose the right to do so. We can advise you in relation to the likely outcomes, whether you are bringing or defending such a claim.

Validity of Wills
There are many grounds on which the validity of a Will can be challenged. It could be that the person who made the will lacked sufficient mental capacity to make it or was unduly influenced by someone to make it. It could be that the person didn’t know and approve of the contents of their will, and in some cases, it can be argued that the will was forged and therefore a fraud.

In order for a Will to be valid, it must comply with specific formalities. These include the following:

  • The Will must be in writing;
  • The Will must be signed by the deceased;
  • The deceased must have signed the Will in the presence of at least two witnesses (present at the same time); and
  • The witnesses must have signed the Will in the presence of the deceased.

We can review your case and advise you in relation to the investigations that may need to be carried out to establish your claim. Likewise, if you are faced with defending a claim of this nature, we can assist you.

Proprietary Estoppel Claims
Disputes can arise after a person’s death if a Will does not reflect a promise made by the deceased before their death, such as a promise to transfer land or property. The equitable doctrine of Proprietary Estoppel is a legal remedy to enforce a broken promise. To prove proprietary estoppel you must show three things:

  • a promise made by one person to another;
  • reliance upon the promise; and
  • detriment suffered by the person in them relying on the promise and it then being broken.

What constitutes each of these depends very much on the individual circumstances of the case and a detailed evidence gathering process will usually need to be undertaken. We can review your case and advise you in relation to the investigations that may need to be carried out to establish your claim. Likewise, if you are faced with defending a claim of this nature, we can assist you.

Estate Administration Disputes
The administration of an estate can be a very complex and lengthy process, and occasionally disputes can arise. These can range from delays in the administration to more serious breaches of an executor’s duty to the estate. We can assist you in trying to resolve the dispute and progress the administration and can also assist in the removal of the executor if that becomes necessary.

If you are involved in a dispute regarding an estate, whether you are an executor or a beneficiary, we can advise and guide you on the best way to deal with your situation.

Trust Disputes
Disputes often arise in relation to trusts, whether that be a trust created under a Will or under a formal trust deed. A trust dispute is any dispute relating to the administration or running of a trust, whether it involves a dispute over the value of assets, how trust funds are being used or dealing with difficult trustees or beneficiaries.

The law on trusts can seem confusing. Modern trusts are now governed by the provisions of the Trustee Act 2000 however, any trusts created before that act came into force have a different set of rules that apply to them.

Trustees have certain duties when dealing with trusts and if they are failing in those duties, it may become necessary to seek their removal either by consent or through the Courts. We can assist you whether you are a beneficiary of a trust of if you are the trustee facing a claim.

Property Ownership Disputes
The Trusts of Land and Appointment of Trustees act 1996 enables a claim to be brought to determine a person’s interest in a property. These types of claim can arise in the context of a Contentious Probate claim in circumstances where the co-owner of a property has passed away, or where the Deceased was not the owner of the property, but had financially contributed towards the capital in the property during their lifetime. More commonly, these types of claims arise between unmarried cohabitees upon the breakdown of their relationship. These claims are trust disputes and involve complex arguments relating to constructive and resulting trusts.

We can assist and advise in relation to any such claim, whether it relates to the estate of a Deceased person or has arisen from the breakdown of a relationship. We can also assist in negotiating a separation of assets for unmarried couples and preparing a formal binding agreement.

Attorney Disputes
Lasting Power of Attorney disputes involve disagreements where an individual has a Lasting Power of Attorney (LPA) in place. An LPA is a legal document executed by an individual handing power to one or more attorneys to make decisions about the individual’s health and welfare or their finances. Dispute can arise between joint attorneys or can arise where a family member has concerns about a sole attorney’s conduct.

Examples of disputes that can arise are where:

  • The attorney is not suitable;
  • The attorneys disagree on where the individual should live or what medical treatment they should have;
  • The attorneys have different views on how to spend or invest the individual’s money;
  • The relationship between attorneys may break down and they can no longer make collective decisions if required to do so under the LPA;
  • An attorney may be inappropriately dealing with the individual’s assets, such as stealing or dissipating the individual’s funds;
  • The attorney may not be acting in the individual’s best interest generally.

The above list is not exhaustive but where there is concern as to the conduct of an attorney or the creation of an LPA assistance from specialist solicitors is vital.

Financial Abuse Claims
Financial abuse’ is defined by the World Health Organisation as “the illegal or improper exploitation or use of funds or other resources of the older person”. [WHO, 2008]

This can include having money or other property stolen, being defrauded, being put under pressure in relation to money or other property and having money or other property misused.

When defining financial abuse, we know that there are many elements to consider. It often involves or associated with:

  • Professionals acting inappropriately or with negligence
  • Someone taking or misusing someone else’s money or belongings for their own gain
  • Harming, depriving or disadvantaging the victim
  • Controlling someone’s purchases or access to money

These can overlap with Lasting Power of Attorney disputes, as it can sometimes be the attorney who is accused of misusing the person’s money. It doesn’t always involve a crime like theft or fraud

These types of claims often arise during the victim’s lifetime but can also often come to light after a person has passed away and it is discovered that large sums of money were taken from them before their death. We can advise you of the options under any of these scenarios, whether you are the bringing or defending such a claim.

Professional Negligence Claims
Sometimes, even professionals do get things wrong. If mistakes are made by a professional in relation to a Will, estate, or trust, and that results in there being a financial loss to the estate, you may have a professional negligence claim.

It could be that a Will was drafted incorrectly and that as a result, a beneficiary has not received what they should have, or the estate ends up paying more inheritance tax than they should have. If this position cannot be easily rectified after death, there could be a claim against the firm that prepared the will.

Claims can also arise where professional executors or trustees are appointed and fail to deal properly with an estate, causing a loss to the estate and the beneficiaries. It can also sometimes transpire during the administration of a person’s estate, that their accountant or financial advisor had wrongly invested money during their lifetime and may have been negligent in doing so.

We can consider and advise you in relation to any potential professional negligence claim that you may have against a professional.

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