Disputes arising out of Wills and the Administration of Estates are becoming increasingly common. The potential areas for dispute are wide-ranging and can include anything from a minor disagreement between beneficiaries to a full scale claim against the Estate by a disgruntled family member or third party. Examples of the most common disputes we encounter are listed below, but this list is by no means exhaustive. Our specialist contested probate team have experience of dealing with a vast range of disputes, and are able to offer sensitive and practical advice, at what is likely to be an already difficult time for all involved. Although we cannot guarantee that litigation will be avoided, we will wherever possible endeavour to resolve your dispute in the most efficient manner in order to keep any stress to the individual and financial impact on the Estate to a minimum.
Challenges to the deceased’s Will
A Will can be challenged for a number of reasons, the most common being a lack of necessary legal formality, for example, the Will has not been properly prepared, signed or witnessed; the deceased did not have sufficient mental capacity to prepare the Will; there has been a factual error in the drafting of the Will; or that the person preparing the Will has not properly understood the deceased’s intentions and the Will is incorrect as a result.
In a recent case, we acted on behalf of the sole beneficiary to a Will that was prepared by an elderly testator who, at the time the Will was drafted, was being cared for in a nursing home and had early stage dementia. A challenge to the Will was mounted by a well known national charity (which had been named as sole beneficiary in the previous version of the deceased’s Will) against its validity on the basis that the testator lacked the requisite mental capacity to prepare it. Our client successfully resisted the claim and received her entitlement in full .
Being an Executor is an important responsibility. Chosen by the deceased to ensure that their final wishes are carried out, an Executor is subject to a number of statutory duties in respect of the administration of the Estate, including a duty to ensure the estate is administered in the Beneficiaries best interests.
Sometimes, Executors do not comply with these duties, for example by failing to properly administer the Estate or wasting/misappropriating Estate funds and disputes can arise as between Executors or between Executors and Beneficiaries. In such circumstances it is possible for a joint-executor or a Beneficiary to take action against a non-compliant Executor to either require him to carry out a specific act or to remove and/or replace the Executor altogether.
For example, we recently acted on behalf of two out of three Executors to a Will. The third Executor was not properly complying with his executor’s duties, and as such the administration of the Estate had stalled. We became involved and negotiated on behalf of the two Executors and succeeded in persuading the third Executor to step down from his position. The administration of the Estate could then proceed.
We also acted on behalf of an Executor who was concerned that his co-executor was misappropriating Estate funds. In that case, an application to Court was required, which was successful and resulted in the Executor being removed.
Claims under the Inheritance (Provision of Family & Dependants) Act 1975
This Act provides that certain family members and dependants of the deceased can pursue a claim against the deceased’s Estate if they consider that the deceased’s Will does not adequately provide for them. There are certain criteria that must be met for such claims to succeed, and in circumstances where claims are successful the Court is able to vary the terms of the Deceased’s Will to provide for the person claiming.
For example, we acted on behalf of the executors and 7 beneficiaries of an Estate in respect of a claim against the Estate by the deceased’s estranged son, who was not included in the deceased’s Will. Whilst Court proceedings were issued, we were able to resolve the claim and reach an acceptable settlement without the need for a full court hearing.
If you would like more information about the assistance we can offer, or if you are currently involved in a dispute and would like to speak to someone please contact either Carla Rist on 0114 2906345 or Alex Guy on 0114 2906355.