What We Do
from the Private Wealth Disputes Team at Birketts
Overview of our services
We’ve highlighted our work in four key areas of contentious trust and probate cases. There will always be questions not answered here so please do contact our team at disputeawill@birketts.co.uk to find out how we can help you with your matter.
Will Dispute
There are a number of grounds on which you might be able to challenge the validity of a will after someone has died. These are:
- Lack of testamentary capacity (the testator did not have capacity to make a will)
- Want of knowledge and approval (the testator did not know what they were signing)
- Undue influence (the testator was unduly pressured or coerced into making the will)
- Lack of due execution (the will was not signed properly)
- Fraud or forgery
Each case will be unique and you should seek advice at an early stage to discuss whether it is in your best interests to pursue, or defend, a claim.
If a will is found to be invalid, the deceased’s estate will be administered in accordance with their earlier will, or if there are no previous wills which are valid, the Rules of Intestacy. It is therefore very important to have a full picture of the implications of pursuing a will challenge so that you can make an informed decision.
If you want to pursue a claim, we can assist you with carrying out initial investigations into the background and preparation of the disputed will, to include obtaining any available documentation from the solicitor who prepared the will and copies of the deceased’s medical notes. We can also advise you of the best way to prevent any steps from being taken to administer the estate pending the outcome of your investigations, and if appropriate, your claim.
We can also offer advice if you are a beneficiary defending a will challenge or an executor of an estate faced with a potential dispute as to the validity of the will in which you are named.
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to make a claim against a deceased’s estate where the last will, or the Rules of Intestacy, do not make reasonable financial provision for them. The people who can claim under the 1975 Act are:
- The spouse or civil partner of the deceased
- A former spouse or civil partner, who has not re-married
- Children, including adopted children and anyone who was treated as a child of the deceased
- Cohabitees
- Anyone who was being financially maintained by the deceased prior to their death
Each case will be decided on its facts and depending on the nature of the relationship which the claimant had with the deceased. The Court will have to consider a number of different factors in order to decide whether an award should be made for the claimant from the estate and, if so, what form that award should take.
There is a 6 month time limit from the date of the grant of probate to bring a claim under the 1975 Act. However, the Court can give permission for a claim to proceed outside of this period so it may not be too late even if 6 months has passed.
We have extensive experience advising beneficiaries who are both claimants and defendants in relation to 1975 Act claims. We also advise executors of an estate faced with a claim for provision.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
Claims against Executors and Trustees
The administration of an estate or a trust will not always run smoothly and there will be occasions where disputes arise, either between beneficiaries and executors/trustees or between executors/trustees themselves. Executors and trustees have an obligation to comply with a number of fiduciary duties when carrying out their role. These include ensuring that they are acting in the best interests of the estate or the trust, and the beneficiaries, at all times. They must also be careful that they do not allow their personal interests to conflict with their overriding fiduciary duty. If an executor or trustee fails to abide by their duties, this could cause loss to the trust and lead to a claim against them for breach of trust. These disputes can also often lead to the removal and/or replacement of the executor or trustee, whether that be by agreement or at the end of a contested court case.
Some common examples of breaches of trust are:
- Mismanagement of trust funds to include making bad investments or distributing funds to the wrong people or in the wrong proportions
- Failing to act impartially between beneficiaries/li>
- Failing to act in accordance with the terms of the will or trust document/li>
- Refusing to provide information to which beneficiaries are entitled/li>
- Failing to keep proper estate/trust account and records or to progress matters in relation to the administration in a timely manner/li>
We can advise both beneficiaries and trustees in relation to these matters, including considering with you the possible remedies available to resolve the dispute. We can offer practical advice and guidance to both beneficiaries and executors/trustees to help navigate through problematic estate and trust administration issues. This may include assisting with obtaining information about the estate or trust and making proposals to resolve any impasse which has been reached. We can also advise in relation to the procedures which will need to be followed, and the documentation required, to remove executors and trustees, including ensuring that appropriate indemnities are put in place. We will consider pragmatic and cost-effective solutions with you throughout the matter, including the possibility of appointing an independent professional personal representative or trustee in place of the existing parties, where appropriate.
In certain circumstances, questions may arise as to the true meaning behind the wording of a will. It may also be unclear as to whether a will records the testator’s actual intentions and the instructions he or she gave to the draftsman who prepared the document. If this happens then we can advise on the remedies available to resolve the uncertainty.
The Court has the power to intervene where the meaning of a will is unclear due to a mistake or poor drafting. There are a number of relevant factors which the Court will take into account to identify the proper meaning of the words in the will including the facts known or assumed to have been known by the testator at the time the will was made.
A claim for rectification of a will can only be made in certain circumstances which include when there has been a clerical error made or a failure to understand the testator’s instructions. The application must be made within 6 months of the date on which the grant of probate is issued or the Court will need to grant permission for the claim to proceed. This makes it very important to progress matters promptly if at all possible although we can assist if the time period has passed and an application needs to be made out of time.
Depending on the outcome of a claim relating to the construction or rectification of a will, it may be necessary for a disappointed beneficiary to consider pursuing a claim in professional negligence against the person who drafted the will. This should be a last resort but we can guide you through the process if a will cannot be rectified using the methods set out above.
The interpretation or rectification of a Will
