Contentious Probate

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  “The agile team at Osbornes acts for a wide range of high-net-worth individuals and families in complex estate and trust litigation, advising on a wide array of contentious trust and estate matters.”

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  “Jan is an expert in international probate work and is praised for a sensible and pragmatic approach to cases.”

What is Contentious Probate?

Contentious probate encompasses disputes around the administration of someone’s estate, whether or not there’s a Will. The administration of an estate can be a complex and lengthy process and disputes can often arise. Our specialist contentious probate solicitors are experienced in sensitively guiding clients through challenging issues, taking prompt action when necessary.

Issues might be raised by disgruntled beneficiaries, personal representatives, trustees or dependents relating to, for instance, mismanagement of the estate, claims against the estate or the interpretation of a Will or a Will trust document.

On what grounds can you make a contentious probate claim?

Many people do not know what a contentious probate claim is until they have become embroiled in one. The root of these claims is a dispute over someone’s estate after they have died. They can take many forms, a few examples are:

• Where a Will is invalid either due to a technicality (i.e. how it has been drafted) or if it has been made fraudulently or under duress or coercion or the person making the Will is thought not to have capacity at the time of making the Will;
• Where someone you may have expected to inherit under a Will has not, such as a husband/wife or child;
• Where the Executor under a Will is not acting properly in administering the estate or someone is preventing the estate from being correctly administered;
• Where there is no Will and there are arguments as to who should deal with the estate;

This is by no means an exhaustive list but rather a highlight of the most common disputes we see.

The nature of these types of disputes are highly contentious and are invariably emotional and always costly. Although they are best avoided where possible, sometimes there is no choice if an issue cannot be resolved without legal assistance.

In order to try and avoid estate disputes it is imperative that you take expert advice as to your estate and what your wishes are. A properly drafted Will can dramatically reduce the possibility of the same being disputed. Conversely, a home drafted will can dramatically increase this possibility. Further, if you do not have a Will your estate will be dealt with in accordance with the Laws of Intestacy which set out which members of your family inherits from your estate.

If you find yourself in a position of dealing with a loved one’s estate and issues arise it is really important to seek advice as soon as possible. Letting an issue fester can exacerbate the situation and make it more complex to deal with, especially as there are certain procedures that need to be followed and time limits to keep in mind.

How Can Our Contentious Probate Solicitors Help?

Finding yourself involved in a probate dispute is likely to be difficult and distressing at a time when you may be grieving – and longing for normality. Our experienced probate litigation solicitors understand this: we take the time to understand the underlying issues and how we can help resolve the dispute.

Thankfully, most inheritance disputes are resolved outside court but if litigation becomes the only way forward to protect your interests, we would take prompt and aggressive action on your behalf.

Our probate team is experienced in all forms of contentious probate disputes, including:

Interpretation of a Will

Mistakes and ambiguities can arise in a Will. They are most common in ‘DIY’ Wills where the Will-maker is unlikely to have taken legal advice and may not have understood the legal ramifications of writing their own Will.

Typical errors in a contested will range from excluding a rightful beneficiary, such as a dependent; inadequately describing an asset; unclear terms as to who inherits on the death of a beneficiary; and purporting to leave an interest in a property they did not own.

Potential ambiguities that may give rise to a dispute include lack of clarity around the testator’s true wishes; and a failure in the intended tax mitigation behind the Will.

Our expert trust solicitors understand complex family trust arrangements and have helped many to resolve disputes to protect their wealth.

• Concerns you may have regarding the administration of a trust
• Removal of trustees
• Court applications to vary the terms of a trust

The process of making a claim depends on whether the Grant of Probate has been issued. The issuing of the Grant can be paused by lodging a caveat with the Probate Registry; but if it’s already been issued, you only have six months in which to start a claim.

Assuming your claim has merits, we would send the executors formal notice of the dispute. We might need to ask the court for rectification of the Will to give effect to the testator’s true wishes and reach the best result for you.

Value of the estate

Disputes around the value of an estate can arise in various ways, eg how a property or interest has been valued; trust assets erroneously included within the estate valuation; and HMRC refusal to apply tax relief to an asset.

Such cases can be complex and we will need early access to documents and other information to assess the issues.

Challenging an executor

Executors have important legal and administrative responsibilities, including collecting in the assets, paying the debts and distributing the assets under the Will’s terms.

Where the Will creates a trust, the executor may also be a trustee – which imposes further legal duties. An executor (and trustee) who fails in their legal duties can expect to attract an inheritance dispute.

Beneficiaries can make an inheritance dispute against executors for breach of duty where their conduct falls short, for example, unreasonable delays, distributing assets incorrectly or prematurely, or where they are not acting in the best interests of the beneficiaries and the estate.

We could ask the court to replace an executor. This may be appropriate if relationships have broken down irreparably, but we can discuss the options with you.

Contested probate where there is no will

Despite the importance of having a Will, around two-thirds of UK adults do not have a valid Will. Some people don’t want to confront death while others don’t think they need one.

Then there are cases where the deceased left a Will – but no one knew about it. In a recent case, a 35-year-old man died apparently without a Will. 10 years after his death, a Will was found and a claim was brought. As it happened, the estate had not been distributed because of a family dispute. Allegations of forgery were not substantiated, and the court ruled the Will was valid – revoking the letters of administration granted to the deceased’s mother.

Where someone dies without a Will (‘intestate’) the intestacy rules under the Inheritance and Trustees Powers Act 2014 (ITPA) set out who inherits the estate. Where the deceased leaves a spouse (or civil partner) and no children, the spouse inherits the whole estate. But it’s less straightforward where there are children:

• The spouse (or civil partner) inherits the deceased’s personal belongings; the first £250,000; and an interest in half of the remaining assets (the ‘residuary estate’).

• The surviving children (this excludes stepchildren) inherit the remaining half of the residuary estate on reaching 18.

However, the law recognises that the application of the intestacy rules in some cases can be unfair if someone was financially dependent on the deceased.

Inheritance Act claims

The Inheritance Act 1975 permits anyone who was a dependent, spouse or child of the deceased to claim ‘reasonable’ financial provision if the intestacy rules or the Will (if there is one) fail to provide it. You only have 6 months to bring a claim.

Specific factors are considered when determining a reasonable financial provision, such as your present and future resources and the value of the estate.

If you need to bring a claim, our specialist solicitors can advise what may be a reasonable inheritance provision in your unique circumstances and attempt to negotiate a settlement with the other side. Click here for more information about Inheritance Act claims.

Creditor claims against an estate

Unknown beneficiaries can later emerge, claiming a slice of the estate, for example, estranged children whose identity and or location are unknown.

In most cases, executors take formal steps to protect themselves from such claims. But a recent court ruling shows they might not always be protected, particularly in the case of currently unascertained creditors, such as unknown victims of sexual abuse (Re Studdert [2020]), where the distribution of the estate has been paused for now.