Wills, Probate, Trusts and Estates and Lasting Powers of Attorney Disputes

Unfortunately, it is not uncommon for a dispute to arise in connection with the management or administration of someone’s estate. These kinds of disputes are normally stressful and complicated. In some cases, they can also be time-sensitive requiring action to be taken promptly and efficiently. Whatever the dispute may be, the dispute resolution team at Fletcher Day is here to help.

Our team is partner led and are experienced in both bringing and defending claims including, but not limited to:

  • Challenging the validity of Wills
  • Challenging gifts or lack of gifts under Wills
  • Disputes between Executors/Trustees or Beneficiaries/Executors
  • Dealing with claims under Intestacy (where a person has died without leaving a Will)
  • Claims for provision under the Inheritance (Provision for Family and Dependents) Act 1975
  • Claims under Trusts
  • Challenges to Lasting Powers of Attorney
  • Applications to the court to be appointed as a person’s Deputy

We address some of these areas in further detail below.

Challenging Wills

of the growth of DIY Wills and bargain online Will services have resulted in errors becoming far more common. What starts as a simple cost saving exercise can result in an ineffective Will and many thousands of pounds in legal costs.

There are a number of reasons why a Will can be challenged. These include:

  • Mental Capacity – where the deceased lacked the required mental capacity to make a Will. This could include not understanding they were making a Will, or not understanding the extent of their assets.
  • The Will has not been properly executed. This is where the Will is not signed by the Will maker in the presence of 2 witnesses who are both present at the same time, who then sign that they have witnessed the signature.
  • The contents of the Will were not approved (this can arise where there are ‘suspicious circumstances’ surrounding the making of the Will; for example, the Will maker is deaf or blind);
  • Undue Influence – where a party is strongly influenced into leaving gifts under his/her Will to some persons but excluding others. This is different to a claim under the 1975 Act;
  • Forgery – where the Will maker’s signature has been forged;
  • Reasonable provision has not been provided for an individual (for more info see ‘Claims under The Inheritance Act 1975’ below)
  • Contesting a Statutory Will which was made on behalf of someone who lacked mental capacity.

If you have reason to believe that a Will is invalid or does not make proper or expected provision for you, you should seek legal advice sooner rather than later.

Claims against or between Executors

An Executor (also known as a Personal Representative) is someone who is appointed under the terms of a Will to administer the deceased’s estate. As a result, an Executor owes a number of duties to the Estate and the Beneficiaries of the Estate.

The main duty of Executors is to realise the assets, discharge the deceased’s liabilities and thereafter distribute the net estate after tax in accordance with the terms of the Will. A failure to act in accordance with their duties can result in a claim by the Beneficiaries against the Executors who can be held to be personally liable.

Where there is a disagreement between Co-Executors, if the matter is not resolved amicably and promptly then the assistance of the court can be sought to determine the issue. This can include the court making an order for the removal of one of the Executors.

Claims under The Inheritance Act 1975

Under The Inheritance Act (Provision for Family and Dependants) Act 1975 (‘the Act’),certain categories of applicants, are able to bring a claim against the estate of a deceased for reasonable financial provision which has either not been provided for them under the terms of a Will, or as a result of the order of and the amounts of the Statutory Legacies which arise under a person’s Intestacy. In cases where inadequate provision has been made under a Will, the claim may often be in relation to the validity of the Will (see above).

Those who may bring a claim under the Act are:

  • a spouse or civil partner of the deceased;
  • a former spouse or former civil partner of the deceased (who has not remarried or entered into another civil partnership);
  • a child of the deceased;
  • any person who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family (the most common example being a stepchild); and
  • any person who immediately before the death of the deceased was financially dependent on the deceased.

Time is of the essence in respect of any claim bought under the Act. Section 5 of the Act provides that the claim must be brought within six months of the date of grant of Probate (Will) or Letters of Administration (Intestacy). Claims outside this time will require the court’s permission.

Lasting Power of Attorney Disputes

A Lasting Power of Attorney (‘LPA’) is a legal document that enables the donor to appoint someone (‘the Attorney’) to make decisions on their behalf in respect of

  • their finances and property
  • their personal health/welfare

An LPA is usually made by a Donor at a time when they are becoming older and infirm and wish to appoint trusted family members or friends to look after their property and affairs should they become mentally or physically incapable in the future. Separate LPA’s must be made to deal with finances/property and health/welfare.

Regardless of the task being carried out, the Attorney is under a strict duty to act in the best interest of the donor and must not profit from their appointment. If there is reason to believe that the Attorney is in breach of these duties action can be taken.

Disputes can also arise if there is reason to believe the LPA has been granted to the ‘wrong’ person, or more importantly that the Donor did not have mental capacity to make the LPA. If the Donor lacked mental capacity or there is reason to believe there has been fraud or undue influence, then action can be taken to revoke the LPA.

If an LPA is revoked where a Donor did not have the mental capacity to make it, this will usually be accompanied by an application to appoint the Applicant as a Statutory Deputy to manage the Donor’s affairs. Such an appointment can only be made by the court and the Deputy must report to the Court on a regular basis.

Defending an action

An Executor Personal Representative can be held personally liable for any breach of duty when administering an estate.

A recipient of a Statutory Legacy under an Intestacy will be a party to a claim for reasonable provision under the 1975 Act, since such a claim will have the aim of reducing another person’s Statutory share.

An Attorney under an LPA may face a claim by family members of the Donor.

Where an issue arises, it is important to take legal advice at an early stage so an informed decision can be taken as to whether and how the action should be defended.

 

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