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1st February 2016
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1st February 2016
If you asked 50 people at random what they consider to be a “Will dispute”, do not be surprised to receive 50 different answers. Whether this results from reading the papers (“estranged daughter gets a share of mother’s estate”), reading Dickens, or hearing of some historic family dispute, the range and variety of problems that can and do arise after someone has died is almost limitless.
Strictly speaking, a “Will dispute” is a dispute over the validity or the interpretation of what is believed to be the deceased’s last Will. However, the term is too restrictive to adequately describe the range of issues that may be involved.
The definition “contentious probate” is generally used by lawyers to describe the range of disputes that arise after someone has died. However, it’s not an accurate label and is potentially misleading. The word “probate” has, in common use, come to mean “the proving or establishing of the validity of a Will”.
The work of a contentious probate lawyer is often to achieve the opposite result and actually dispute the validity of what may appear to be the deceased’s last and true valid Will. In some circumstances, the lawyer will assist a client pursue a claim where there is no Will at all.
The task of a contentious probate lawyer can involve involve investigating, proving and then seeking to assist a client (or clients) determine and implement the true wishes of the deceased person. Thereby helping ensure the deceased’s assets and money go to those entitled.
The scope of disputes under the banner of contentious probate is endless. For instance, often difficulty is experienced because those tasked with administering and distributing the deceased’s estate fail to do so properly, or in such a way as to raise suspicion that those entitled may lose out.
Many who pass away leave their money or assets in a trust and disagreements often arise as to ownership or use of property or money in that trust. The trustees may disagree or fail to adhere to the wishes of the deceased resulting in a dispute with those entitled now or in the future.
Below are some examples of typical disputes.
1. Challenges over the validity of a Will or Codicil – It may be argued that the Will was not signed or witnessed correctly; that the deceased person did not have the mental capacity to make a valid Will; that they were being coerced, did not know or approve of the contents, or that there is in fact a later valid Will in existence. There are also incidents where fraud is involved and the Will has been forged.
2. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 – This allows the court to exercise discretion and award reasonable financial provision out of a deceased’s estate, e.g. (“estranged daughter gets a share of mother’s estate”). The Act applies whether or not there is a valid Will in existence.
3. Disputes over the administration or distribution of a deceased’s estate – Sometimes those appointed refuse to organise the estate, do it wrongly, take too much time, or seek to use assets and money for their own purposes.
4. Clarification – Sometimes a Will is valid but contains a mistake or a provision is not understood. In certain circumstances a court will allow a Will to be rectified or seek to determine the exact meaning of a clause or gift.
5. Costs – There are often disputes over the costs incurred by those administering the estate, the trustees appointed, or the lawyers assisting them. It may be possible to apply to the court to reduce those costs. Trustees may fail to properly administer a trust or cause the trust fund to suffer loss and it may be possible to recover those losses.
6. Roles – Replacing executors or trustees who fail to take up their duties or deal with their duties adequately.
In recent years there has been a significant increase in disputes over the estate of someone who has passed away. If you require assistance to resolve such problems, or wish to seek advice on whether to bring a claim, you ought to secure the services of an experienced solicitor and preferably one who is a Member of The Association of Contentious Trust and Probate Specialists (www.actaps.com).
Tony Pearce is a solicitor with considerable experience in contentious probate. He has been a member of ACTAPS since 2004 and is head of the contentious probate and trust team at GA Solicitors.
