Will Disputes & Contested Estates
When a loved one passes away it is inevitably an extremely distressing time. This can be made worse if there are issues surrounding the terms of their will or the estate that they had left.
Whether you are a executor of an estate who faces a challenge to the validity of the deceased’s last will or financial claims against the estate or, alternatively, you wish to challenge the will or make a claim, we are sure that you would prefer to have that issue resolved as quickly as possible and with the minimum of disruption and cost to you.
- Gemma Smith
- Associate Solicitor
Contentious Probate is the legal term when there is a dispute over a will or someone contests an estate or a trust.
At Tilly Bailey & Irvine, we have a specialist team of Contentious Probate lawyers who are highly experienced and knowledgeable in this specialist area of litigation.We can advise on the legal position and enter litigation where necessary, but we will also focus on resolving the dispute as quickly as possible to allow all the parties to move on.
The areas of law on which we can assist are:
- Claims challenging the validity of the will based upon lack of testamentary capacity, want of knowledge and approval and undue influence - If you consider that the deceased may not have had the ability to make a will or that they did not realise what they were signing, maybe as a result of an illness that they were suffering from (e.g. dementia, cancer, depression) or as a result of medication that they were taking which could have made them confused or delirious, then the validity of the will could potentially be challenged. It could also be challenged if another person coerced the deceased into making their will and that the terms of the will does not reflect the deceased’s true wishes (they were unduly influenced).
- Claims under the Inheritance (Provisions for Family & Dependants) Act 1975 - As a spouse, child or dependent of the deceased, if the deceased’s will or the intestacy rules mean that you do not receive anything from the deceased’s estate or you do not consider that it is sufficient for your needs, then you could make an application to the court to vary the terms of the will so that you receive a sum that the court considers to be “reasonable financial provision” for you.
- Breach of trust claims - If you are a beneficiary under a trust and you do not consider that the trustee is managing the trust correctly in accordance with the terms of the trust (e.g. making distributions of trust money to people not entitled, making risky investments or using the trust money for their own personal benefit) then you may be able to claim against the trustee for breach of trust. If the trust suffers a loss a result of that breach, then the trustee can be personally liable to repay the trust fund.
- Rectification of wills - If a will does not do what the deceased intended it to, due to a clerical/administrative error or that the person who drafted the will did not understand the deceased’s true intentions, then you could make an application to the court to rectify the terms of the will to reflect the deceased’s true wishes.
- Removal of executors - If an executor is refusing to act to deal with the estate or is not complying with their duties such as not treating all of the beneficiaries fairly or is in dispute with the beneficiaries then we can advise about making an application to the court to have that executor removed and if necessary, replaced with an alternative executor.
- Disputes with executors/trustees - If you consider that an executor or trustee is not acting in the best interests of the estate or trust then we can advise as to what steps to take and we can advise you as to how to obtain information from the trustee/executor about the trust which you may be entitled to see.
- Entering caveats to protect the estate - If you consider that there is a potential challenge to the validity of the deceased’s last will then to allow time to make further enquiries and try to resolve the dispute you can enter a caveat at the Probate Registry to stop the grant of probate being obtained by the executors. This will mean that the executors cannot deal with the estate (e.g. sell property) and distribute assets to the beneficiaries under the disputed will until either you agree to remove the caveat voluntarily, it is warned off or the Court makes an order. There is a fee of £20 to lodge a caveat and it lasts for a period of 6 months. It can be renewed every 6 months upon payment of an additional fee.
If you would like to discuss any issue regarding claims against an estate or challenges to a will then please contact us.
The Legal 500 ( 2017) : Tilly Bailey & Irvine’s specialist department provides ‘an exceptional service, from the initial call to the matter’s conclusion’. The firm provides ‘clear, concise and informative advice’ covering the full spectrum of contentious trusts and probate work, including Inheritance Act disputes, validity issues, constructive trust claims and executor and trustee removals. Commercial litigator Kenton Bazeley heads the group, which includes ‘practical and down-to-earth’.