18th July 2024 ❘ Legal News and Commentary
Inheritance, Trusts and Will Disputes – the most frequently asked questions
Inheritance, Trusts and Will Disputes – the most frequently asked questions…
What is contentious probate?
Contentious probate is an umbrella term to describe disputes in relation to a person’s Will or estate. Disputes of this nature range from challenges to a Will to claims under the Inheritance (Provision for Family and Dependants) Act 1975. They also include disputes about executors and trustees.
What is a caveat?
A caveat is a way of stopping a Grant of Probate being issued in an estate. It is an important initial step to take if you want to challenge a Will. Caveats last for six months but can be renewed.
On what grounds can I challenge a Will?
There are several ways a Will can be challenged and generally they relate to issues concerning:
- The lack of capacity to sign a Will
- Undue influence
- Fraudulent Calumny (this is where somebody has told lies to the testator and it has made them change their Will)
- Where the legal formalities for signing a Will have not been followed
- Where the testator does not have knowledge of the contents of the Will
- Fraud
Can I bring a claim if someone has died without a Will?
First it is important to conduct a search to make sure there is no Will.
If it is confirmed there is no Will and you do not benefit under the rules of intestacy then it may still be possible to purse a claim for reasonable financial provision from an estate. That type of claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975.
Is it possible to remove an executor?
If you are beneficiary and have concerns that an executor is not administering the estate in accordance with their duties then it is possible to make an application to the Court to remove and replace the executor. There are several steps you should undertake before making an application to the Court.
What evidence do I need to challenge a Will?
This will depend on the exact nature of the dispute, however, one of the key pieces of evidence will often be the Will preparation file. Where a professional has prepared a Will, their file can be requested under what is known as a Larke v Nugus request. You can also ask that the Will drafter prepares a statement concerning the circumstances around the preparation of the Will.
It is also possible to seek evidence from those who have witnessed a Will – this is particularly useful if the Will was prepared at home without this use of a professional.
Do the costs relating to contentious probate action get paid by the Estate?
This is often a misconception. There can be instances where the Estate is liable for the legal costs of a claim but often it is the loser that must pay the winners costs. The position on costs is, however, complex and it is important to obtain professional advice as the costs position will vary from case to case.
What is an Inheritance Act claim?
The Inheritance Act allows certain categories of people to bring claims against an estate if they have not been left with reasonable financial provision. This applies to both people who have been left out of a Will or where what they do get is not sufficient (either under a Will or the rules of intestacy).
Strict time frames apply to these types of claims and it is important to obtain professional advice on those time limits as soon as possible.
What happens if a Will has been lost?
If a Will has been lost it is important that the necessary searches for a Will are undertaken. We can advise on what those steps are. It may also be possible to proceed with a copy of a Will even if the original cannot be found.
What happens if I have been promised something but it is left to someone else in a Will?
In these instances, you may be able to pursue a claim under Proprietary Estoppel. This is where an asset has been promised to you and you have relied on that promise to your detriment.
What do I do if I am a beneficiary and an executor is not providing me with information?
An executor is under a strict duty to account for what they are doing in relation to the administration of an estate. If they are not providing the necessary information, you can make an application to compel them to do so.
Further questions? We’ll be happy to help – just get in touch.