Contested wills and estates
Sadly, it’s not unusual for people to fall out after the death of a parent or other loved one when entitlements to the deceased’s estate are not as expected or seem unfair. Sometimes the argument stems from a badly drawn will – see our Wills and estate planning service if you want to avoid this – but there can be many other reasons.
A few examples of the problems that arise are:
- Disputes over the validity of the will and claims for rectification
- Objections to those appointed to administer the estate ( i.e. between executors and/or trustees or by beneficiaries)
- Claims by relatives who feel they have not been properly provided for under a will or under the rules of intestacy
- Disputes involving powers of attorney and applications to the Court of Protection
We encounter problems such as….
Mental capacity or intention
The person writing a will (the testator) must have testamentary capacity. In other words, he or she must be able to understand what he or she is undertaking and the implications of it.
The fact that someone suffers from a mental illness or disability does not automatically mean they lack capacity. Where capacity is challenged a court usually requires the opinion of a medical practitioner, but will also look at non-medical evidence.
Where it can be shown that a testator lacks capacity their will may be declared invalid. A testator must also have knowledge and understanding (approval) of the contents of their will. Difficulties can arise for example where a testator is blind and therefore not able to read the will before signing. If it can be shown that the testator did not have the proper intention the will can be declared invalid.
When making their will the testator should do so voluntarily. Sometimes they are coerced or compelled to say and write things they do not agree with. This is known as undue influence or duress.
If it can be shown that undue influence was exerted over the testator their will may be declared invalid. Very occasionally wills are made fraudulently, for example where someone is tricked into signing ‘his’ will. If sufficient evidence can be found, again the will may be declared invalid.
Undue influence is a concept that does not just apply to wills. For more detail see our separate page on this website (links above).
Lack of formality
For a will to be valid it must comply with strict statutory requirements (under s9 Wills Act 1837). If the requirements are not met the will can be declared invalid. Most often problems arise where a will is incorrectly witnessed or where a home drawn will fails to comply with the formalities.
Negligent wills or administration
Solicitors (and non-qualified will writers) owe a duty of care not only to the testator making the will but also to the beneficiaries. Claims can arise where the will drafter has failed to discharge this duty.
Examples include failing to complete a will in a timely manner (particularly important where the testator is very ill), failure to ensure the will is correctly signed and witnessed, failure to check for clerical errors.
Problems can also arise where executors rely upon solicitors to assist in administering an estate and those instructed act negligently in the course of doing so, for example misapplying assets, incorrect distribution to beneficiaries.
Dependency or “1975 Act” claims
Under English & Welsh law we are generally entitled to leave our assets to whomever we wish. However the law – in the form of the Inheritance (Provision for Family and Dependants) Act 1975 - does sometimes intervene to offer some protection to those who are financially dependent on us.
Often, close family members such as the deceased’s spouse, children, civil partner, cohabitee or even other non-family dependants feel that no reasonable provision has been made for them under a will or on application of the intestacy rules (where there is no valid will). In these circumstances they can bring a claim against the estate.
The court will look at a number of factors before deciding whether a claim is successful i.e. age of the claimant, duration of marriage or civil partnership, contribution to the welfare of the family, etc.
Beneficial interest claims
Sometimes claims arise where there is a dispute over the beneficial ownership of an asset, often the family home. The purpose of a beneficial interest claim is to override the legal ownership of an asset.
For example, a couple purchase a property together intending to live in it as their family home and both contribute to the ongoing mortgage payments, upkeep etc but the legal title is placed in one party’s sole name, for one of any number of reasons.
Later the couple want to sell their home, but only the party named on the legal title will be required to sign the paperwork and will receive the sale proceeds. This could be unconscionable or inequitable in the eyes of the law.
A court may well take the view that a constructive trust arises so that the party with legal ownership holds the property on behalf of both parties beneficially and must account to the other party for a share of the proceeds on sale.
Promissory estoppel is a concept by which the courts can ensure that justice is done where one party has acted to his or her detriment in reliance on the promises of another. A common example arises where land or property – often a farm - is promised by a parent to a child. That child undertakes work on the property at their own expense in the belief that they will inherit the land on their parent’s death but then see the property gifted by will to somebody else.
The law may be able to assist by doing what is right - or equitable - namely ordering transfer of the land into the disappointed child’s ownership.
Personal representatives (executors or administrators) and trustees are appointed to look after the deceased’s assets following their death and administer the estate in accordance with the terms of the will, on intestacy or manage the ongoing administration of any trusts created.
It can be an onerous and time-consuming task. Often PRs and trustees require advice and support in this role - an area we are able to assist in (See Probate and estate administration). In some situations there are disputes either between those appointed or concerns raised by beneficiaries over the way in which an estate is being administered. This may involve the court in the removal or substitution of personal representatives or trustees.
We can help with all of these problems and more. Whether you are generally unhappy and searching for a route to challenge or face claims from others in these unhappy situations, contact us now by e-mail or telephone 01460 200450.