Disputed wills, trusts and estates
Timely, efficient and expert resolution of disputes over Wills.
The right trust arrangement can protect your wealth for future generations – but, unfortunately, many people fail to put their affairs in order before they pass away. The result can be that their families fall out over who should inherit what and there can also be questions over the validity of Wills.
Even when careful planning has taken place, things can go wrong. Executors of estates and Trustees of trusts may not carry out their duties correctly, or may disagree amongst themselves about how to proceed. Sometimes, court action may be required to resolve disputes. On death, it may become apparent that someone who was supposed to be looking after the deceased’s affairs during their lifetime (the attorney) wasn't doing so correctly. This can lead to the Executors challenging steps taken by the attorney.
At Weightmans, we have vast experience of all these disputes but, more importantly, we know how to avoid them in the first place. Drawing on expertise from across the firm, we aim to resolve issues as smoothly as possible, at what can be a very trying time.
Frequently asked questions
How do I obtain a copy of the will?
If an individual has died and you have not been provided with a copy of the will you may wish to find out who benefits from their estate so that you can decide whether to contest the will. The will could be provided by agreement with the executor who should have been provided with a will on the death of the testator. All beneficiaries have a right to know that they are a beneficiary of a will.
If an executor won’t provide a copy of the will then a search can be lodged at the Probate Registry. If a will has been prepared then it would be made public when a Grant of Probate is applied for.
A standing search is a simple form that can be obtained from any District Probate Registry or from the internet. Details including the deceased’s full name, last address and date of death, together with details of the person lodging the standing search would be required. A standing search can be completed and registered with the Probate Registry for a fee of £6.
What happens if there is no will?
If the deceased died without leaving a valid will their estate would be administered under the intestacy rules. These rules are set out by statute and dictate who would inherit a proportion of the estate. In general terms those entitled to inherit are surviving spouses and children. If there is no surviving spouse or children then parents, siblings and more distant blood relatives would inherit.
I am a family member who has been cut out of a Will. Can I claim?
If you haven’t been left anything or very little under a will then you may be able to claim under the Inheritance Act. Husbands, wives, civil partners, ex-spouses, cohabitees, dependants and children of the deceased are all entitled to claim. Our expert team would be happy to discuss how to make a claim under a will if you have not been named as a beneficiary.
Can I contest or challenge a will?
In certain circumstances you can contest the validity of a will if you believe it has been prepared using undue influence, or where the deceased lacked mental capacity to prepare a will.
How do I stop an estate being administered if I want to contest the will?
If you do not agree that a will is valid and believe there are grounds for contesting a will then the first step to take is to ensure that a caveat is entered at the Probate Registry which would prevent a Grant of Probate being taken out. This would give you time to investigate the circumstances of the will being prepared before a grant is provided which would allow the executor to administer the estate.
It is important that a caveat is only entered in appropriate circumstances were you wish to contest the validity of a will. If a caveat is entered for any other purpose then there could be potential costs consequences.
I am a child of the deceased but I am now an adult can I claim?
Adult children are permitted to make a claim against an estate were they have been left with little or no financial provision by their parents. In claims made by adult children the courts will assess factors including the size and nature of the estate, whether the parties have any disabilities, any obligations which the deceased had towards the child and the financial circumstances of the child and other beneficiaries.
I am a beneficiary of a will and I am unhappy about how it is being managed. Can I do anything?
Potentially you can apply to remove or replace an executor if they are acting unreasonably in the administration of an estate. The removal of an executor would involve a court hearing were evidence would need to be provided about the way the administration of the estate has been handled if the executor will not agree to stand down voluntarily.
Are there any time limits?
There are certain time limits to contest a will but these are dependant on the individual circumstances of each case and the grounds you wish to contest. If you are submitting a claim under the Inheritance Act then the time limit is 6 months from the date probate was granted. Although the time limits for contesting a will would depend on the specific circumstances of each case the sooner you act the better.
Will I have to go to court?
You would not normally need to go to court if the proceedings are uncontested or if you are able to settle the dispute. All our solicitors are highly trained in alternative dispute resolution and mediation and we have a high success rate of settling disputes without the need for court proceedings. If however we are unable to settle the case you may need to attend court to provide evidence in relation to your dispute.
What is mediation?
Mediation is a voluntary process where each party agrees to try and settle a dispute without going to court. If the mediation fails, then the parties can still proceed to court and details of what was discussed at mediation would not be disclosed or used within the court hearing. The terms of any discussions occurring in mediation are entirely confidential. Mediation can be used as an alternative to court proceedings but the process is entirely voluntary.
Who pays the legal costs?
A will dispute can be settled before proceedings are issued or at any time prior to a final hearing. If the dispute is not settled and the matter proceeds to a final hearing then the court will decide how costs are to be paid. An assessment at court will determine the level of the bill to be paid and who should pay those costs. The normal rules are that the unsuccessful party would pay the successful party’s costs. We would provide you with a detailed costs estimate so that you know how much the legal costs are likely to be from the outset.
In appropriate cases we can work under deferred fee arrangements or conditional fee agreements (no win no fee). We also have good connections with litigation funders who could consider whether they would be prepared to provide funding for your claim. We have full flexibility with our fee structures to make sure that you can choose the most appropriate fee structure that would work for you.
During the deceased’s lifetime they made suspicious or excessive gifts of money or property to third parties. Is there anything I can do?
If the gifts were made while the deceased was susceptible to undue influence or vulnerable, for example due to illness or had reduced mental capacity, then it is possible to make an application to set aside the gifts and return any property or money to the estate.
Scarle v Scarle and the ’commorientes’ rule: who died first?
HHJ Philip Kramer, sitting as a judge of the High Court, gave his judgment last Tuesday (13 August 2019) in the matter of Scarle v Scarle.
Family investment companies – an option worth considering
A Family Investment Company is a company, created by and for family members that typically will hold investments rather than operate a trade.David Stokes Principal Associate
First instance, the appeal and “standing still” in claims under the Inheritance Act
Cowan v Foreman  EWCA Civ 1336 has just gone before the Court of Appeal
Inheritance Provision for Family and Dependants Act 1975; claims, limitation periods and pre nuptial agreements
The High Court of England and Wales has recently rejected a claim for reasonable financial provision from the estate of Michael Frederick HendrySally Cook Solicitor
How to avoid the ‘Hurley’ Burley of a disputed trust or estate
The son of actor Liz Hurley, Damian Hurley, is set to inherit a share of his grandfather’s estate after a decision handed down by Judge Daniel Juarez…
View Richard’s profile
View Damian’s profile
View Robert’s profile
Jessica KrajaPrincipal Associate
View Jessica’s profile
Matthew MortonPrincipal Associate
View Matthew’s profile
David StokesPrincipal Associate
View David’s profile
Sarah Louise WalkerPrincipal Associate
View Sarah Louise’s profile
- How do I obtain a copy of the will?