The distribution of a person’s estate after their passing can often raise complex concerns for the people they left behind. Unfortunately these concerns can ultimately lead to disagreements down the line. At Orpen Franks our specialist solicitors act in both bringing and defending probate claims and in inheritance disputes. We will guide you through this contentious process and ensure you know exactly what to expect”
We advise our clients in the following contentious probate areas:
- Challenging and Defending the Validity of a Will
- Lack of Testamentary Capacity Claims
- Proprietary Estoppel Claims
- Removal of Executors and Trustees
- Acting for charities in relation to their entitlement under a will
1. Challenging and Defending the Validity of a Will
In cases where people want to challenge the fairness of the will, it is important to choose a law firm who are experienced in contentious probate litigation. In the past we have acted for executors seeking to fulfil the terms of the will as well as family members challenging a wills legitimacy.
There are three main remedies at law where one wants to challenge a will’s validity:
(a) A spouse is entitled under the Succession Act 1965 to a Legal Right Share in the Estate of the Deceased or opt for the gift under the will.
(b) The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 establishes a redress scheme for cohabiting couples, the goal of which is to protect a financially dependent party on death. Orders that can be applied for from the estate include maintenance, pension or property adjustment orders. It is a discretionary relief and in order to qualify an unmarried couple must be residing together for a period of 5 years or 2 years if there is a child. Economic dependency, the length of time of the relationship and the rights of other parties are also big determining factors in deciding if redress is warranted
(c) A child can have recourse to the estate by virtue of section 117 of the Succession Act 1965.
These cases often arise where a son/daughter has been left nothing under a will or challenges the provision that has been made for them. The Key factors the courts are likely to consider in deciding whether proper provision has been made include, the parent’s financial means, the age, financial position and prospects in life of the person making the claim under 117 and whether the parent has made proper provision for the child.
2. Lack of Testamentary Capacity Claims
Another key area upon which a will can be challenged involves claims that the testator did not have capacity at the time of executing the will, that is, he or she was someone of sound mind. These cases often arise where a testator suffered from dementia or Alzheimer’s disease or alternatively where you believe the testator was under the undue influence of another person at the time the will was executed and thus you claim they could not have understood the consequences of their decisions for their estate.
3. Proprietary Estoppel Claims
A claim for proprietary estoppel often arises in the farming background. For example, a farmer promises his child the farm on death in return for free labour but upon death the farm goes to another. There are three key factors to be established in order to pursue a claim of proprietary estoppel 1) that there were promises or representations made 2) a person’s expectation of what they were to receive and 3) the detriment which they suffered in reliance upon that expectation.
4. Responsibility of Executors and Trustees
An executor’s role can be onerous. Charged to administer a person’s estate when they die and to take out a grant of probate, they can issue proceedings or even enter into contracts to sell land. Indeed, they are also tasked with arranging for all the deceased’s asset to be valued and ascertain all debts and liabilities.
Where you believe there has been a failure by the executor to perform these duties you can hold him/her liable. Executors can be sued for acts of negligence or fraud, as they have responsibility to ensure:
- The estate administration of the deceased is been completed within a reasonable timeframe.
- That payments to all creditor accounts, including any tax liabilities are paid.
- Distributing the assets of the estate to the correct beneficiary.
Similar responsibilities fall on Trustees who administer trusts.
5. Acting for charities in relation to their entitlement under a will
Orpen Franks has experience of dealing with challenges to wills on behalf of charities. We have experience dealing with instances where a charity has been left a legacy in a will but disappointed relatives have taken the view that the charity has received “too much” and should surrender part of its interest.
FREQUENTLY ASKED QUESTIONS
Q: What is the cost of such measures and am I likely to be responsible for costs should I fail in my challenge?
A: The cost of any litigation can be expensive and contesting a will is no different. However, if your case is stateable and not frivolous, then the applicant will regularly be entitled to his or her costs from the estate.
To obtain more information concerning funding an inheritance claim or defending such a claim, please do not hesitate to contact us for a free no-obligation consultation.