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.
FREQUENTLY ASKED QUESTIONS
The following are common questions we get asked about civil litigation issues. If you cannot find the answer here, please contact us with your question.
There are alternative dispute resolution processes which can, and in some cases, must be considered. These are an alternative to court proceedings.
These include written, without prejudice negotiations, face to face meetings, formal mediation, expert determination, mediation and arbitration. The effectiveness of these processes depends on the parties’ willingness to compromise and some options may be more effective than others, depending on the type of case.
For example, boundary disputes are very conducive to expert determination and mediation, where an independent third party surveyor can try to assist the parties with reaching an agreement at a site mediation. In more complex construction disputes, the parties are expected to have a face to face without prejudice meeting.
In every case, there should be some attempt at without prejudice, written or telephone negotiations.
For most cases, we would charge on an hourly rate basis but every case and client is different. We are more than happy to consider funding options including fixed fees, fee caps and alternative funding arrangements like ‘no win, no fee‘ agreements or damages-based agreements with clients.
Please do not be afraid to ask – we are very approachable. However, it is important that clients understand that we are a business and it might not be economically viable for us to offer certain things.
What a client is prepared to offer or accept in settlement depends on a client’s appetite for risk and willingness to accept the aggravation and cost of dealing with a claim. The strength of any claim is also an important factor to consider the strength of the parties’ positions and risk in the case also needs to be considered.
The cost of getting the matter to a conclusion is a consideration, as there will normally be an element of irrecoverable cost to a client.
There is no specific rule about what an offer should be, as every case and every client is different.
This depends on a large number of factors, but broadly how complex the matter is and how much work will be required. We do not charge based on how long a matter takes to resolve, but on how much work it takes to resolve it.
Clearly, achieving an early settlement means that less work is required than going all the way to a defended trial and taking all of the steps necessary to get there. However, sometimes it is necessary to take certain steps before a settlement can be achieved.
Two particularly important stages of litigation are disclosure, when the parties formally exchange documentation about the claim, and exchange of witness statements, when the parties set out the detail of the facts of the case.
However, it does take time to reach these stages and deal with them properly, which is why the Court expects a party, to a lesser extent, undertake these steps before issuing a claim, as it can lead to settlement once each party can consider the evidence and basis of the claim.
Separate steps will need to be taken to enforce a judgment if a judgment debtor does not pay.
This can include instructing bailiffs, securing a charge for the debt against property, obtaining an order that the debtor’s employer pay a proportion of the debt directly from the debtors wages or seeking an order that a third party who owes the debtor pays the creditor the money owed instead.
These steps all have a cost implication, so it is important that before any claim is issued, some consideration is given to the financial circumstances of the other party. If a debtor has no money or assets, the judgment may go unpaid.
Depending on the type of claim, the Court has set down a number of rules, called Pre-action Protocols, which set out the expected conduct of a potential litigant. If no specific Protocol applies, there is a general Practice Direction which will apply.
Broadly, any formal litigation or court process is expected to be the last resort. The parties are expected to behave reasonably, giving each other time to set out their respective cases, provide evidence and discuss settlement.
The failure to observe this conduct can lead to a Court penalising a defaulting party.
You may very well be an expert in your trade. We are regularly instructed by professionals and tradespeople who, to them, the matter appears very straight forward.
However, where there are technical arguments about things, the Court expects expert evidence on the point to be provided. This can be done by appointing separate experts or by jointly instructing a single expert.
For example, we have been instructed in cases involving alleged negligence by surveyors, in which there are very technical arguments about subsidence or the historical movement of a property. The surveyor will clearly seek to argue that there is no subsidence whereas the property owner would seek to argue that there is. The Court will expect expert evidence on the point from third parties to be provided. Sometimes, cases involve complicated forensic analysis, for which an expert accountant will be required.
We will advise you about the need to obtain expert evidence and when this might be appropriate.
There are several reasons why this is important.
Firstly, the Courts expect all parties to behave reasonably and to try to settle their matters. This is not the same as saying someone must make an offer of settlement but it is important that clients understand that if an offer of settlement is not made and there is no attempt to settle a case, then the Court can take this into consideration on whether or not to award a party their legal costs.
Secondly, a good offer of settlement does have tactical value. If it is beaten at trial, this can later be highlighted and the Court might look favourably on this and consider awarding a greater portion of the offeror’s legal costs.
There are also some special types of offers which can be made, called Part 36 Offers, which if beaten at trial, will significantly improve the prospect of a more favourable costs award being made for the offeror.
However, an offer of settlement must be genuine. If a Court considers that it was made solely for the purpose of securing a tactical benefit, the Court is likely to disregard it when considering what costs to award.
The basic position is that “costs follow the event”. This means that if you are successful in bringing or defending a claim, then you will also be awarded your legal costs.
Depending on the type of claim, the Court will assess what proportion of the legal costs should be paid by the losing party, taking into account various things, including the value of the claim, amount of work undertaken and attempts to settle.
In higher value claims, this process is called detailed assessment and involves following a specific process until, if an agreement cannot be reached, a court hearing takes place. This will involve incurring further legal costs, some of which may also be recoverable from the losing party.
In lower value claims, the court will normally undertake a summary assessment of the legal costs. This is a rough and ready assessment of what costs the Court considers should be payable by a party and normally takes place after a hearing, during which arguments about the costs are heard.
For claimants, it is also important to understand that if a claim is issued but not defended, then the costs that can be recovered are called fixed costs and are very low and in the region of around £130. Fixed costs apply in some other circumstances, for example, in possession claims.
Because of the way in which the Court works, it is not often that a winning party will be awarded all of the legal costs that they incur.
The simple answer to this is no.
Generally speaking, only a Court or tribunal can order one party to pay the other party’s legal costs. Before a claim is issued, the Court has no jurisdiction to do this. Once a claim is issued, then the pre-action cost incurred can be claimed. However, someone would be ill advised to issue their claim without going through the expected attempts to reach an agreement first.
Special types of offer, called Part 36 Offers, can sometimes be made and, if accepted, would entitle a party to claim their legal costs up to the date of acceptance.
There may also be a contractual right to claim the costs of dealing with the dispute, depending on the terms of any contract involved.
We obviously try to identify relevant evidence and law which is in your favour at an early stage and consider that which is not. However, this is an ongoing process and certain facts and evidence might not immediately be identified at the outset. If, following what is an ongoing assessment, it is clear that a case will be won or lost, you will be advised of this.
However, there would be no need for lawyers if the law was always black and white. Cases very rarely go to trial or are argued about if they are clear cut. Very strong or weak cases normally settle before incurring the cost and risk of court proceedings on the best terms possible. Cases that go to trial are those which have arguable points and could often go either way.
A lot of the time we are not able to advise clients conclusively about whether or not their case will be successful because there are a lot of variables. The best that is normally possible is to provide a risk assessment, based on the evidence before us and relevant law. This is broadly called “litigation risk” and exists in every case. Litigation risk is something that needs to be considered at all times and in deciding on what steps to take in a case. Also, every client is different and ultimately it is up to them to decide where to draw the line based on our advice and what risks they are willing to take.
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