Contentious Probate Claims

The nuclear family is now a thing of the past and it is now far more common for a deceased to have two, or maybe more, families if they have had failed relationships during their lifetime.

Also, given that even modest estates now often comprise of at least a property, this can mean a sizeable amount of money is left after the deceased has passed away.  Unfortunately, these two issues, when placed together, do not often result in a harmonious outcome and this probably explains why the number of legal disputes over the distribution of estates are growing in number.

If you find yourself in such a situation, our solicitors will be able to provide you with advice on how best to deal with matters as quickly and cost effectively as possible.

Dealing with a probate dispute is not easy as emotions will be running high and, regrettably, the only person who would be able to clarify the situation, is no longer here.

Probate disputes can involve a number of issues but primarily tend to fall into one of the following categories: –

  • The arrangements for the burial / disposal of the ashes of the deceased
  • Lifetime transactions / gifts made by the deceased
  • The administration of the deceased’s estate
  • Rectification of the Will
  • The validity of the Will

The arrangements for the burial / disposal of the ashes of the deceased
The general rule is that a body does not constitute property and therefore cannot pass under a Will or under the Rules of Intestacy. Therefore, whilst the deceased can state in their Will how they would like their body to be disposed of, such wishes are unenforceable.

In the majority of cases, where the deceased has left a will, there will be no need for a dispute to arise over this issue as the wishes of the deceased will generally be followed.

However, where the deceased has died without a Will then this can lead to disagreements arising as to who should be responsible for disposing of the body and also how such a disposal should take place.

Ultimately, if an agreement cannot be reached between the individuals in question, this issue can be referred to the Court for a decision to be made.

Lifetime transactions / gifts made by the deceased
A gift made during the deceased’s lifetime can be challenged if it can be demonstrated that the deceased did not have capacity at the time the gift was made.

If faced with such an issue, the Court will make a decision on the deceased’s capacity in accordance with the criteria set down in the Mental Capacity Act 2005. An individual is seen as not having capacity if :-

“at the material time… unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of,  the mind or brain.”

If it can be shown that the deceased lacked capacity at the time the gift was made, then it is possible for the Court to set this gift aside and for the asset in question to be returned to the deceased’s estate.

With lifetime transactions, the situation is slightly different. If the parties involved in the transaction have provided suitable consideration then the transaction will not be overturned purely on the grounds that one of the parties lacked capacity.

However, if it is shown that the transaction took place due to undue influence being placed on the deceased then the transaction may be overturned. Undue influence can be either actual or presumed.

With actual undue influence this requires proof of coercion. If this is demonstrated the transaction in question will be set aside irrespective of whether there is a question as to if the transaction in question was actually disadvantageous to the deceased.

With presumed influence, to establish this, it will need to be shown that there was a relationship of influence between the parties (such as close family members etc.) and that there is a transaction that calls for an explanation.

If these two elements can be established, this may result in the Court setting aside the relevant transaction.

The administration of the deceased’s estate
Even if there is no question that the Will of the deceased is valid, there may arise a situation where difficulties arise as to actual administration of the estate.

These can range from disagreements between the Executors themselves as to how a particular issue is dealt with; to disagreements between the Beneficiaries and Executors as to the steps being taken to administer the estate.

Where an agreement cannot be reached informally, there is the option of referring the matter to Court where a Judge can make an Order dealing with:-

  • Directions on how the estate should be administered – Administration Order.
  • The removal and or substitution of an Executor / Trustee.
  • An injunction to prevent an Executor / Trustee from taking a particular course of action.
  • Permission of the Court for the Executors /Trustees to issue or defend against any proceedings brought against the estate.

Rectification of the Will
Where it is felt that the terms of the deceased’s Will do not give effect to their true intentions, there is the option of applying to Court for a Rectification Order.

If the Court is satisfied that the Will in question fails to carry out the deceased’s wishes due to: –

(a)       a clerical error; or
(b)       a failure to understand the deceased’s instructions

then the Court may Order that the Will be rectified to carry out the deceased’s intentions.

Where a Will has been incorrectly drafted, there is also likely to be a negligence claim against the professional who originally drafted the Will.

The validity of the Will
Where the actual validity of the deceased’s Will is questioned, this can be challenged in a number of different ways:-

  • The Will was not properly executed.
  • The Will has been revoked (possibly due to the deceased getting married).
  • The deceased did not have capacity at the time the Will was made.
  • The deceased was subject to undue influence into making the Will
  • The Will has been fraudulently created.
  • The Will has been forged.

Where it is demonstrated that the deceased’s Will is invalid, the estate of the deceased will either be administered in accordance with any earlier Will created or, in the absence of this, as per the Rules of Intestacy.

When considering whether to challenge the validity of a Will, there are a few important issues that you need to consider: –

  1. A challenge to a Will must be brought before the Grant of Probate is pronounced. If this has already occurred, it is possible to revoke the existing Grant but this can be a difficult and costly exercise and, depending on the time that has passed, should be approached with caution. If the Grant has not yet been pronounced, a Caveat can be filed at the Probate Registry to block the Grant whilst matters are considered.
  2. Ideally, prior to any proceedings being issued, a full assessment of the strengths of your case should be carried out. It is reasonable to request any Solicitors who drafted the Will and or Executors involved provide you with certain information so that you can make an informed decision as to whether or not to formally proceed with your case.
  3. Regardless of the ground of challenge adopted, if proceedings are issued and you are unsuccessful with your claim, a costs order may be made against you by the Court. This is why it is important that, before any proceedings are issued, a full assessment of the case needs to be carried out.

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