The death of a relative or friend is always a stressful time. The last thing that you should want to worry about is the distribution of the estate. Unfortunately, disputes sometimes arise if it is believed that the estate distribution is incorrect.
We pride ourselves in achieving practical solutions for you in problems relating to the Administration of Estates. In every case we have two objectives:
- To conclude your case on the best possible terms, and
- To do this as quickly as possible
In safe hands
Will and Estate Disputes are handled by our sympathetic and approachable team is headed by Stephen Lawson.
Stephen is one of only around 400 lawyers nationwide to have sufficiently proved his experience and skill in order to join the Association of Contentious Trust and Probate Specialists (ACTAPS).
His expertise is recognised by others and he is often asked to present lectures to other lawyers on these issues. Stephen is currently chair of the STEP Cheshire group (Society of Trust and Estate Practitioners).
We can help you deal with any dispute relating to Wills, Estates, Trusts and Court of Protection issues including:
- Inheritance Act claims
- Claims where a Will has not been signed and witnessed correctly
- Claims regarding lack of mental capacity
- Disputes over the identification of beneficiaries
- Claims for and against executors
- Claims involving agreements regarding property made prior to death, known by the old Latin phrase Donatio Mortis Causa
Inheritance Act claims
Inheritance claims can be brought by individuals on the ground that inadequate financial provision has been made for them.
- Claims can be brought whether or not there is a Will in existence.
- Claims can be brought by a current or former husband or wife (including a same sex civil partner), a cohabite of more than two years, an ‘adult’ or infant child of the deceased or other dependants.
- The calculation of the valuation of any claim can be complex and includes a variety of circumstances including the needs of the Claimant, the needs of other beneficiaries and the size and nature of the estate.
- We have substantial experience in this type of case including claims won at trial – although experience has shown that we are able to settle the majority of these claims without the worry of Court proceedings.
Claims relating to the validity of a Will
A Will can be challenged on a variety of legal grounds including:
- Technicalities – sometimes a Will is incorrectly prepared or witnessed. In this eventuality the Will is usually totally invalid – and the estate would be administered as if there is no Will in existence.
- Lack of Capacity – sometimes people make a Will and they do not have the mental capacity to make it. This can often be a problem with elderly people who have had mental health problems. Sometimes people taking heavy prescription medication or have substance abuse (such as drugs or alcohol) may not have the capacity to make a Will at the time they actually sign it. The person preparing the Will may not recognise this lack of capacity or suspect anything untoward and the issue may only come to light after the person who has made the Will has died. We use a nationally recognised established bank of Counsel and experts to help our clients prove their case.
- Lack of Knowledge and Approval – sometimes it can be the case that a Testator does not know and understand the nature of a Will that has been signed. This can particularly be the case if, for example, a person who cannot read or who is not wearing their essential spectacles at the time, signs a long Will that they do not understand.
- Undue Influence – sometimes family members put undue pressure on someone who makes a Will to make provision in their favour. A will can be set aside on this ground.
Claims against previous advisors who negligently provided a Will
Someone who prepares a Will as a part of their business is under a “legal duty of care” to the beneficiaries to take reasonable skill and care when preparing it. Sometimes people who prepare Wills “get it wrong”.
In one recent case, a solicitor was asked to prepare relatively straightforward Wills for a husband and wife. Unfortunately the solicitor asked the husband to sign his wife’s Will and the wife was asked to sign the husband’s Will. Seven years later, when they had both died, the mistake was spotted and both Wills were declared invalid.
In these circumstances claims can be made on behalf of disappointed beneficiaries. Alternatively steps can be taken to rectify a Will if, as a result of clerical error, the Will that has been prepared does not reflect the wishes of the person who has died.
Donatio Mortis Causa
This literally means “gift on the occasion of death”. This is a gift made during someone’s lifetime – but which is made in contemplation of death. Legal title to a gift (which may include substantial assets such as the contents of a bank account or house) takes effect on the death of the person making the gift.
There are three essential requirements for this provision to be made out, namely:
- The gift must have been made in contemplation of death
- The subject matter of the gift must have been delivered to the recipient e.g. Title Deeds to a house handed over or a Building Society Passbook or
- The gift must have been made under such circumstances as to show that the property goes back to the original owner if the original owner recovers.
Devastavit
Devastavit literally means “waste” – a claim in Devastavit is made against the Executor or the Administrator of an estate who has inappropriately allowed the assets of an estate to diminish by neglect, maladministration, abuse or other negligence.
In these circumstances in the Executor or Administrator of an estate can be personally liable to disappointed beneficiaries.
How we can help
In appropriate cases we can deal with claims on a private paying basis, or a “no win, no fee” basis. We will discuss this with you at the outset of any case.
To find out more about how we can help with Will and Estate Disputes contact us.
