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Specialist advice in the area of contested probate, fraudulent wills, concerns over mental capacity and use of undue pressure in making a will. Drawing on their legal expertise Daniel Winter, Pete Dodd and Peter King are able to advise and guide clients sensitively through this very difficult and emotive area of law.
Services Overview
The Nockolds LLP Probate Dispute Resolution Team has extensive legal expertise in the complex areas surrounding contentious probate including challenges to the validity of Wills and Inheritance disputes. They also regularly receive instructions on disputes regarding the actions of Executors and Personal Representatives, as well as claims involving trusts.
Claims are becoming more and more common and at Nockolds we have built a solid reputation for representing and advising clients in this specialist field of law. The number of cases has doubled in the last five years due to the complexity of modern day families with remarriages and step children and the high value of many Estates despite the recent economic downturn.
The Team can guide you through the complex legal processes to either help assist in making a successful challenge or to defend a challenge in relation to the estate.
Broadly speaking wills and inheritance disputes can be classified in the following areas:
Daniel Winter is an experienced Dispute Resolution Solicitor and an Associate member of The Association of Contentious Trust and Probate Specialists (ACTAPS), the recognised body within the legal profession for lawyers specialising in contentious trust and probate work.
Peter King heads up the Wills, Probate, Tax and Trusts Team. He is a member of The Law Society Probate Section of the Society of Trusts and Estate Practitioners (STEP).
Peter Dodd specialises in acting for cohabitees and acted in the case of Negus v Executors of H Bahouse Decd [2007] All ER(D)353(Oct), [2007] EWHC 2628 (Ch) and 2007 WL 3001880.
These kinds of disputes occur frequently and often involve high value properties. If you believe you have a claim against a loved one’s estate or wish to challenge a Last Will and Testament or seek advice on any contentious probate please contact Daniel Winter on 01279 755 777 or email us at dwinter__AT__nockolds__DOT__co__DOT__uk
Top of Page ↑Challenges to the validity of a Will or Codicil
Failure to observe proper formalities
The Will must normally be made by someone who is over the age of 18, is in writing and signed by the maker in the presence of two or more witnesses at the same time.
However any individual in military service or any sailor at sea who is under the age of 18 can legally make a will.
The maker of the Will lacked sufficient mental capacity
It is essential that the maker of a Will understands the nature of the document and what effects it will have. If there are doubts as to the maker's ability to understand and appreciate this, and that there is a medical condition that may have distorted the way in which that person made his or her Will, it may be invalid.
Lack of knowledge and approval
The maker of the Will must know and approve of its contents. This can be called into question if it appears that the Will contained a mistake or was not prepared properly, where the maker of the Will suffers from a condition such as blindness, deafness or illiteracy, or for some other reason where the maker of the Will might not have known entirely the content and significance of what he or she was signing.
Fraud or undue influence
A valid will should be an expression of the maker’s wishes, and not anybody else. A Will may be invalid if the maker was placed under coercion by another or made the Will as a result of deception.
If you have suspicions that a Will may be invalid for any of the reasons explained above, you should seek advice quickly. There are no specific time limits for starting a validity claim, but its best practice to take immediate action to stop anyone from obtaining a Grant of Probate and distributing the Estate assets, by entering what is known as a “caveat”, to allow everyone some breathing space while your claim is investigated.
Top of Page ↑Claims under Inheritance Provision for Family and Dependants Act 1975
An individual can make a claim on the Estate of a deceased on the basis that the Will or the intestacy (i.e. no Will was ever made) failed to make reasonable financial provision for the individual.
A person who wants to bring a claim must "qualify" by having a certain relationship to the deceased, generally:
- spouses & former spouses
- civil partners & former civil partners
- children of the deceased
- people treated as a child of the deceased (even if not blood related)
- people maintained financially by the deceased, and
- frequently cohabitees (i.e. unmarried couples or same sex couples) if certain requirements are met.
In addition those suffering from disabilities sometimes have strong claims for inheritance, or an increased inheritance, if they were not left a sufficient sum.
Unmarried Couples and Civil Partnerships.
When somebody dies without leaving a Will, there may be people who will be disappointed not to receive an adequate (or any) inheritance under the laws of intestacy.
This is often the case with unmarried couples or same sex couples who have not formally become Civil Partners, but lived in the same household. There is no automatic right to inherit for unmarried or not formally recognised partners. However, many people simply do not realise they may have a right to claim an inheritance. It is not just partners who may be affected by the intestacy laws, as often children or other relatives will not receive a reasonable amount and may have a claim worth pursuing.
If you believe you may have a claim for inheritance you should seek advice immediately. Strict time limits apply to make a claim so do not delay. At Nockolds LLP we are experienced in representing both claimants and defendants in inheritance disputes.
Top of Page ↑Claims against Personal Representatives
Personal Representatives ("PRs") are those who are responsible for the administration of a deceased's Estate. This is usually the Executor under the Will.
The Personal Representatives are under certain duties:
- to collect in the Estate assets and administer the Estate according to law;
- It is usual for the PRs to have to report to the Court on oath with a full inventory of the Estate and submit an account.
They are also in a position of trust and have duties to act in the best interests of the trust and to act fairly to all beneficiaries.
If they fail to carry out their duties, action can be taken by a beneficiary if a loss is or is likely to be suffered.
Common Claims against Personal Representatives
- failed to carry out the deceased's wishes under the Will;
- made distributions to persons not named in the Will;
- failed to maintain neutrality;
- sought personal gain;
- failed to obtain sufficient information regarding the Estate.
Remedies available to disgruntled beneficiaries are to hold the Public Representative to account for any financial loss suffered, or to obtain directions from the Court on specific issues.
In extreme cases it is possible to apply to remove the Public Representative and for the Court to replace them.
Claims may be brought by those who have a right to property that has been disposed of under a Will.
For example, a property may have been promised by the deceased to someone who has relied upon that promise, but when the Will is read the deceased has left that property to somebody else.
Property can include assets such as land, buildings, shares, investments and savings.
Entitlement can often arise where the person who has been denied their asset made a contribution towards its purchase, whether monetary or otherwise, in the belief that there was an agreement that they would one day receive what was intended to be left after the death of the paper owner. This situation can give rise to what is called a "trust".
There may be little or no documentation of the intention of the parties, particularly if it was a family arrangement. This can lead to a dispute as to whether the contribution was a loan, a gift or the acquisition of a percentage share in the asset purchased.
