Probate, Inheritance and Wills disputes

Probate, Inheritance and Wills disputes

Arguments about someone’s final wishes and the way in which their estate is dealt with when they die can often arise.

Amongst other things, Cunningtons can assist you with:

• Claims by personal representatives and beneficiaries;
• Claims against personal representatives;
• Claims by disappointed beneficiaries;
• Challenging the validity of a Will; and
• Inheritance Act claims

Claims by personal representatives and beneficiaries

Dealing with bequests that arose from negligence

When someone dies, disputes regarding lifetime transfers of assets can arise. A personal representative has a duty to investigate suspicious transactions and the value to do so can give rise to claims of negligence and breach of duty.

Examples of lifetime transfers which may be open to challenge include transfers of property following the application of undue influence on the deceased by a third party or when the deceased was ‘tricked’ into parting with money or property.

By way of illustration, threatening to withdraw care from an elderly person unless they agree to transfer their property to someone during their lifetime would potentially be open to challenge.

If someone obtains a gift of cash by taking advantage of the deceased who was suffering from a mental condition could also potentially be open to challenge.

Claims against personal representatives and beneficiaries

Help when an executor or testamentary administrator is not doing their job properly

An executor or administrator of an estate has a duty to the beneficiaries of that estate to act in their best interests and to exercise their duties with reasonable skill and care.

Circumstances can arise when the personal representative fails in that duty by mismanaging the deceased’s estate and causing a loss to it. This may be by way of a deliberate act or the recklessness of the personal representative.

This might include:

• Selling property below its market value, often because of the failure to obtain proper advice or because of a delay in selling assets which are diminishing in value,
• investing assets badly or against the terms of the Will or
• using assets for their own personal gain.

If you are a beneficiary under a Will, or because someone has died without one and you are concerned that the personal representatives are not doing their job properly, Cunningtons can assist you in investigating and if necessary taking action.

We also assist personal representatives who are opposing such allegations or who may want advice on their responsibilities.

Claims by Disappointed Beneficiaries

Helping someone write a Will is a serious job: a Will-writer has a responsibility to the testator and the beneficiaries

A solicitor or Will drafter that prepares a Will for someone owes not only a duty of care to their client but also to the potential beneficiary of that Will.

If a Will is poorly drafted, it can lead to results which the deceased did not intend and leave the beneficiary in a worse off situation than would otherwise have been the case.

A Will drafter also has a duty to prepare a Will in a timely fashion and advise properly as to its execution. The failure to execute a Will properly will invalidate it, potentially leaving beneficiaries without an inheritance that was otherwise intended.

If a Will is not drafted and executed in a timely fashion this can lead to a situation where the person making the Will dies before it is executed, again potentially causing a loss to beneficiaries.

Cunningtons can assist in bringing claims against Will writers who may have failed to carry out their instructions in a timely fashion or drafted a Will badly, leading to a loss to the otherwise intended beneficiary.

Challenging the Validity of a Will

It is important that a Will fully respects the wishes of the testator

A person’s Will represents the wishes of that person as to what happens to their property and money when they die. However, what happens when a person’s Will does not actually reflect what they wanted to happen to their property?

This can happen when, for example, an unscrupulous relative places undue influence on the person making the Will to leave them things which they may not otherwise wish to do.

Another way in which this occurs is if the person making the Will lacks the testamentary capacity to do so. For example, a person suffering from dementia may genuinely be unable to understand the effect of their Will.

Sometimes, particularly with ‘home-made‘ or ‘off-the-shelf‘ Wills, the required formalities to make a legally binding Will may not have been observed.

In such circumstances it is possible to challenge the validity of a Will.

With any claims against a deceased person’s estate, it is important to act quickly.

Whilst there is no specific deadline to challenge the validity of a Will, the courts do regularly apply what is known as the doctrine of laches in considering whether or not the person challenging the Will has done so within a reasonable period of time. The two particular milestones that the Court will take into account are:

• when the grant of probate was obtained and
• when the estate was distributed to the beneficiaries.

Cunningtons can advise you and assist you in bringing a challenge to the validity of a Will.

We can also assist in Will reconstruction and disputes regarding lasting powers of attorney.

Inheritance Act Claims

You can choose who will inherit, but …

… in some countries, the law imposes forced heirship. This broadly means that the laws of that country prevent someone from giving parts of their estate (such as real property) to anyone but to those whom the law allows.

In England and Wales, the law recognises that a person making a Will should have the freedom to choose what happens to their property when they die. However, the law also recognises that sometimes people have responsibilities to make a reasonable financial provision for others when they die.

The Inheritance (Provision for Family and Dependants) Act 1975 is intended to enable certain people to ask the Court to change the way in which the deceased’s assets are distributed, so as to make a reasonable financial provision for them if the Will as drafted or because someone died without a Will, no reasonable financial provision has been made.

The people entitled to apply for such a court order are:

• the spouse or civil partner of the deceased;
• a former spouse or former civil partner of the deceased who has not entered into a subsequent marriage or civil partnership;
• a person who has been living in the same household as the deceased for two years as husband and wife or as civil partners, even if not formally married;
• a child of the deceased;
• a person who was treated as a child of the deceased (e.g. an adopted child); and
• any person who immediately before the death was being maintained by the deceased.

Claims under the Act must be brought within 6 months of the date of the grant of probate or letters of administration.

With this in mind it is very important to act quickly in considering whether or not you have such a claim and to consult a solicitor who will be able to advise you about such a claim.

Cunningtons can advise you in respect of claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Please contact our Wills and Probate teams at your local branch for writing a Will that is unlikely to attract issues of contentious probate. We have offices in Braintree, Brighton, Chelmsford, Croydon, Hornchurch, Solihull and Wickford.

FURTHER INFORMATION