Will and Trust Disputes

Probate is the process of administering someone’s estate (including money, property and belongings) after they die. If the estate has significant assets, a formal grant of probate must be obtained form the court so the estate can be collected and divided between the beneficiaries identified in the will.

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person.

Only married or civil partners and some other close relatives can inherit under the rules of intestacy. A claim under the Inheritance Act can still be considered on an intestacy situation.

If there is no will, the deceased’s estate will be governed by the laws of intestacy. These are laws which lay out who the beneficiaries of a person are and in what order.

Search everywhere the deceased might keep a will and check with any solicitors that may have been involved. Also check on The Nation Will Register (previously known as Certainty). If a will was known to have been made(fully signed and witnessed) but the original cannot be found, a photocopy of the latest will or strong evidence of the content of the lost will can in some circumstances be submitted to the Probate Registry with an application (with the appropriate evidence in support) that the copy is entered into probate. A dispute may arise if the original signed will was last known to be in the deceased’s possession because of a rebuttable presumption that the original cannot be located because it has been destroyed with the intention of revoking the will.

The validity of a will can be challenged if it was not signed, witnessed or drafted correctly made by someone not of sound mind (lacking capacity) made under pressure (undue influence) made fraudulently. Although not based on a challenge to the validity of the will itself, the Inheritance Act 1975 can also be relevant in some cases.

The first step would be to seek specialist legal advice as soon as possible. It may be suitable to apply to the Probate Registry to enter a caveat which will prevent the executors or administrators from obtaining a grant to administer the estate. This would give more time for the lawyer to investigate the claim and prepare a case to challenge the validity of the will.

A caveat is commonly used where there is concern about the validity of the deceased person's will. The caveat will stop someone from obtaining a grant and administering the estate while those concerns are being investigated. Caveats last for six months and can be renewed. A challenge can be brought to seek the removal of a caveat in appropriate cases.

A specialist will dispute lawyer can help to stop an estate being paid out to the beneficiaries if there is a concern that the will is invalid. This is achieved by placing a block on the issue of a grant of probate by the probate registry using a caveat.

The first step is to ask the executor for a copy of the will. If this is not possible, once a grant of probate has been made then a will becomes a document of public record and a copy can be obtained from the Probate Registry. To get a copy of the will urgently, a subpoena can be served on the person who has the will which requires them to bring a will to the court, for example, if they hold the original will but are failing to do anything with it following the death.

Also referred to as a ‘forfeiture’ clause, this means the beneficiary will forfeit their inheritance if they make a challenge against the will. It is important for a beneficiary to check for this clause in a will before making a claim because if unsuccessful they will lose their inheritance.

This can vary as each case is different. For example, if the estate is complex or there are a number of beneficiaries who stand to inherit, the process will likely to take longer to resolve. Usually a dispute is concluded within a few months following investigation. However, it can take longer if an agreement cannot be reached and it goes to court, often up to 12-18 months.

If you know of the existence of a later will, you should tell the executors as soon as possible. If a grant has already been issued it is not too late – the court has power to revoke an existing grant of probate so that a new grant can be issued to the executors named in the later will.

Certain family members and dependants can apply to the court to vary how the estate is divided. The court will consider where the deceased lived if they were married/civil partnership/former partner to the deceased if they lived with the decease if they were a child of the deceased or treated as their child if they were financially looked after by the deceased.

Your lawyer will prepare a formal letter before claim and explore settlement negotiations to avoid going to court. If it is not possible to reach an agreement, the claim will go to court, although it is still possible to negotiate a resolution at any stage up until the trial.

It is important to act quickly; time limits may be relevant and there is a risk that assets might have been distributed already if there is a delay. Applications under the Inheritance Act must normally be made within six months of the date of the grant of representation (the official document confirming who is to administer the estate and sometimes referred to as a grant of probate). Individuals facing a claim against them (defendants) should also be alive to the time limits as a successful limitation defence could provide a total defence to an Inheritance Act claim.

Some of the factors considered include physical and mental health, obligations and responsibilities of the deceased person, the size and nature of the estate (the assets left behind by the deceased), and the financial needs and financial resources of applicants and the existing beneficiaries. Each case is different and depends on its own facts.

The court has very wide ranging powers, examples of orders that can be made include payment of a lump sum, periodic payments, transfer of specific assets, an outright interest in a property a lifetime interest in a property.

Encouragingly the majority of disputes are resolved by settlement without going to trial. In disputes that do go as far as court, the nature of the dispute can in some instances mean that witness evidence is not needed from you.

Yes, mediation is a form of alternative dispute resolution (ADR) that is particularly suited to inheritance and trust disputes. Mediation is often quicker, less stressful and cheaper than going to court and should be given careful consideration.

This unfortunately is a common situation. Intestacy rules (that say who gets what if there is no will) do no benefit a cohabitee partner, however you could have a strong claim under the Inheritance Provision for Family & Dependants) Act 1975.

Children (whether adult or under 18) and step children can make a claim. There are multiple factors the court must consider in these cases including financial factors and personal circumstances the size and nature of the estate any obligations and responsibilities which the deceased had towards their children whether the children have any relevant disabilities the manner in which the children are being or expect to be educated or trained.

It is a common misconception that the legal costs of an inheritance dispute are automatically paid out of the estate. If a case settles through negotiations the parties can agree between themselves who should pay the costs. If the dispute goes to a trial, the court decides who pays the costs and an assessment then determines how much this will be. The usual rule is that the unsuccessful party pays the costs of the successful party as well as their own.

A trust beneficiary is entitled to certain information, usually this will include a copy of the trust document, any deeds of variation of the trust, deeds of appointment and trust accounts. A trustee ought to consider any request for information carefully, because if the court finds there is no good reason for the trustee to have refused, they are at risk of an order for costs, which could mean a significant financial penalty.

In England and Wales, people have the freedom to leave their money and property to whomever they like. However, it is possible to challenge a will in certain circumstances, such as:

You believe the will is invalid, for example because:
It was made by someone not of sound mind
The testator (person who made the will) was coerced or forced into making the will (undue influence)
The testator did not know of the will’s contents or approve of it (even if they signed it)
It was not signed, witnessed or drafted correctly
You were left out of the will or you were not left as much as you need – in this situation, you may be able to make an Inheritance Act claim

You can make a claim against a professional, such as a solicitor or financial advisor, if they were negligent, for example:
A professional did not execute the will properly
A professional wrote the testator’s wishes down wrong
A professional did not properly assess whether the testator had sufficient mental capacity to make a will
A professional gave the testator negligent tax advice

An executor is someone appointed under a will to handle the administration of a deceased person’s estate. Executors have significant responsibilities, such as to get the estate valued, handle inheritance tax, liaise with HMRC and distribute inheritance to the beneficiaries.

If you are a beneficiary of an estate and you are concerned that an executor is handling the estate administration poorly or fraudulently, you may be able to make an application to remove and (if appropriate) replace the executor.

Wherever possible, it is beneficial to try to resolve an executor dispute before resorting to court. Many issues can be successfully dealt with without going anywhere near a courtroom.

However, if amicable resolution is not possible, we can provide advice about applying to remove an executor before probate or after probate has been issued.

As the beneficiary of a will, you will surely have many questions and concerns about the administration process – how long should probate take? Has the estate been valued correctly? When am I entitled to receive my inheritance?

Where you have concerns that an executor or administrator is mismanaging the estate or causing unnecessary delays, we may be able to take legal action. Similarly, if you are the beneficiary of a trust and you believe the trustee is not following their duties correctly, you may be entitled to make a legal claim.

Another common type of issue is a dispute with another beneficiary over inheritance. If you think that you have not been left as much inheritance as you need in favour of another beneficiary (whether they are a family member, a friend of the deceased or a charity), we can provide advice on making an Inheritance Act claim.

For more information, please visit our Disputes involving Executors, Trustees and Beneficiaries page.

Disputing a will can cover a range of different types of dispute, for example you believe the will is invalid, for example because * It was made by someone not of sound mind. * The testator (person who made the will) was coerced or forced into making the will (undue influence) * The testator did not know of the will’s contents or approve of it (even if they signed it) *It was not signed, witnessed or drafted correctly.

Contesting probate refers to any dispute about the way a person’s estate is administered after they die. A will dispute does fall under this broad definition, but some contentious probate matters can relate to other matters, not just the will. For example an executor might sell an estate asset at undervalue to a friend or family member, or keep the estate money and not pass it on to the correct beneficiaries.

Burial disputes arise when people are not able to agree what should happen to a person's body after they die, including how or where to bury the body. These disputes can often be dealt with sensitively and by agreement, but the court will assist in breaking a deadlock if necessary. The identity of the executor named in the last valid will can be of particular significance in a burial dispute.

The without prejudice rule will generally prevent statements made in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions against the interest of the party which made them. The rationale is that settlement discussions will be facilitated if parties are able to communicate freely, secure in the knowledge that what they have said and, in particular, any admissions which they might have made to try to settle the matter, may not be used against them should the settlement discussions fail.