Kuits’ Contentious Trust and Probate team provide expert advice and practical support in disputes relating to inheritance, Trust and Will disputes. Our solicitors have extensive experience dealing with these types of disputes and understand not just the legal intricacies of disputes of this nature, but also the human aspects too, handling them with the care and sensitivity they require. Across the team, we have professional memberships in the Association of Contentious Trusts and Probate Specialists (ACTAPS) and the Society of Trusts and Estate Practitioners (STEP).
Our wealth of experience across disciplines paired with a collaborative approach across other departments within the firm on contentious trusts and probate matters represents a unique offering for clients, combining probate and litigation experience to provide, not only expert legal advice but also, pragmatic advice to clients including in relation to complex estates (for example, estates including property, businesses and offshore assets). We always try to achieve commercial, practical and amicable solutions and advocate alternative dispute resolution (ADR) methods where appropriate, including mediation, before or after proceedings have been issued.
We regularly advise Executors, Trustees, Beneficiaries or potential beneficiaries, Attorneys appointed under Lasting Powers of Attorney (LPA) or Enduring powers of Attorney (EPA), and Charities.
Areas we can assist you include:
1. Bringing or defending claims concerning the validity of a Will or Trust;
2. Bringing or defending claims concerning the amount, or lack of, provision made for you or another person in a Will;
3. Disputes between Trustees, Executors and Beneficiaries;
4. Rectification of an incorrect, lost or destroyed Will;
5. Concerns in relation to an Attorney’s actions or conduct under an LPA or EPA; and
6. Protecting charitable legacies.
It is important that any action to contest a Will is taken quickly following the passing of the Deceased. Once the Grant of Probate has been issued by the Probate Registry, it can make pursuing a claim against a Deceased’s estate more difficult. If you have a claim against an estate, it is possible to prevent a Grant of Probate being issued.
Where a Will appears, on its face, to meet the requirements and formalities required, it is presumed to be valid. If a Will does not meet those requirements, including that it must have been properly witnessed by two witnesses at the time it was signed by the Deceased, it will be invalid.
The presumption of validity can be challenged on the following grounds:
1. Lack of capacity
If it can be established that the Deceased did not have ‘testamentary capacity’, at the time of making a Will, then that Will is invalid and the Deceased’s estate will be distributed in accordance with any previous valid Will or, where there is no valid earlier will, the Intestacy rules.
A person will have testamentary capacity where they satisfy the principles set out in the case of Banks -v- Goodfellow (1870), namely that they:
- understand the nature and consequences of making a Will;
- have some understanding of the extent of the property which they intend to dispose under their Will;
- are aware of the persons for whom they would usually be expected to provide in their Will (including any moral claims someone might have); and
- are not affected by any disorder of the mind (e.g. dementia, Alzheimer’s disease). The review and analysis of medical and care home records can be essential in establishing whether such disorders existed.
2. Undue influence
Wills can also be invalid if it can be shown that the Deceased, at the time of making the Will, was subject to undue influence by a third party. These types of claims often occur where the Deceased was vulnerable and the third party, often a close family member or friend, exploits their relationship with the Deceased to benefit themselves or someone close to them to the disadvantage of others.
3. Lack of knowledge and approval
For a Will to be valid, the Deceased must have known the contents and made an informed decision to complete it. In some cases, a Deceased may have signed a Will not knowing or understanding the provisions of their Will, rendering it invalid. This could be because complex provisions within a Will were not properly explained to the Deceased, the explanations given were inaccurate, or the Will was not prepared in their native language.
4. Forgeries and fraud
In rare cases, a Will may have been forged or subsequently altered by a third party, in which case it will be invalid. Careful consideration needs to be given to claims alleging fraud or forgery as they can be very difficult to prove and strong evidence in support of a claim will be required.
Disputes between Trustees, Executors and Beneficiaries
Executors and Trustees have a duty to all the Beneficiaries under a Will or Trust to administer the Deceased’s estate or Trust property with due diligence and in accordance with the terms of the Will or Trust.
An Executor or Trustee may be personally liable if they fail to:
- put the interests of the Beneficiaries before their own interests;
- act reasonably and prudently in relation to the estate or Trust property;
- take all proper steps to protect the assets of the Deceased or Trust; or
- distribute the proceeds of the estate to the Beneficiaries.
If you require any assistance in relation to bringing or defending a challenge to the validity of a Will, please do not hesitate to contact us by completing our online enquiry form here.
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