Trust, Estates & Will Disputes

I suspect someone was unduly influenced when they wrote their Will – what can I do?
19 May, 2017

You might be concerned that undue influence has been exerted on someone when they executed their Will. For example, a beneficiary may have been unexpectedly excluded or another beneficiary received a surprisingly large gift.

influence

There may be a valid reason for the decision, even if it is a strange or unpopular one. However, it is also possible that the deceased’s decision making process was undermined by the influence of another when they executed the Will.  If this is the case, it is possible for the disputed Will to be ruled invalid on the grounds of undue influence.

The court will always consider the individual facts of each case. They need to be satisfied that there was genuine coercion, which goes beyond normal persuasion or inducement – it is not enough to show that the facts of a case are consistent with undue influence.

Whilst it is often difficult to demonstrate undue influence, in cases where such activity is expected, there are often other challenges that can be made to the disputed Will – for example, that the deceased did not know and approve of the contents of the disputed Will or that the deceased lacked capacity to make the Will.

It is also possible to assert that undue influence has been exerted as a means of challenging the validity of other documents, such as trusts or the appointment of attorneys under an EPA or LPA.

If you are concerned that a Will may have been affected by undue influence please contact Philip Youdan at philip.youdan@cripps.co.uk or by phone on: 01732 224 013.

For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.

 


Promissory estoppel and revoking a promise of a post-death gift
5 May, 2017

After someone dies, a relative or friend may expect to benefit under their Will. If that person is excluded, a Will dispute can often follow.

One means of challenging a disputed Will is known as “Promissory Estoppel”. This occurs when:

– a person (A) makes a promise – for example, that they will leave a gift in their Will – to another person (B);

– (B) relies on that promise to their detriment; and

– (A) subsequently goes back on their promise.

Scenarios that we often encounter include where a friend or relative promises to leave property or money in return for:

  • Working in their business, for example a family farm;
  • Providing physical care;
  • Sacrificing some part of their life, such as a job, to support or assistance.

If the existence of the promise and reliance on that promise can be proved, the Court has the power to make an award. In determining any award the court will consider a number of factors including the proportionality of the promise and, even if a claim is successful, they may only award an amount sufficient to place the claimant back in the position they would have been in had the promise not been made.  This may be less than the full value of the promise.

If you think you may have a claim against an estate on the grounds of promissory estoppel please contact Philip Youdan at philip.youdan@cripps.co.uk or by phone: 01732 224 013

 

 

For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.

 


We are in disagreement about chattels forming part of a deceased’s estate – what can I do?
14 April, 2017

What exactly are chattels? Essentially, they are personal possessions. From 1 October 2014 chattels are any ‘tangible movable property’ that is not:-

 

  • money or securities for money;
  • at the date of death used solely or mainly for business purposes; or
  • held at death solely as an investment.

The definition is slightly different if an individual died, or has a Will dated, before this date. In particular, all chattels used for business purposes are excluded (not just those used ‘solely or mainly’ for that purpose) but possessions held as an investment are not expressly covered.

If you die intestate, all of your personal chattels will pass to your surviving spouse or civil partner (if you have one).

If you have a Will you can specify, either in the Will itself or in an accompanying letter of wishes, if you want to leave any specific personal possessions to a specific person. The Will will normally specify that all other chattels form part of the your residuary estate and will pass to the relevant beneficiary(ies).

Making a Will can help avoid disputes about who should inherit possessions. Doing so removes any question regarding the definition of personal chattels and what would constitute a personal possession (one which provides personal use or enjoyment) or a business or investment possession. 

Additionally, if you have a Will but it is dated pre-1 October 2014, the old definition will apply. You should consider whether you need to update your Will to allow for the new definition.

If you want to prepare or review your Will, or think you may have a claim in respect of chattels, please contact Philip Youdan at philip.youdan@cripps.co.uk.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.

 

 

 


With probate fees increasing in May, what should I do if a caveat is preventing me from taking out the grant?
5 April, 2017

If you are the appointed personal representative of a deceased’s estate, you are likely to be aware of the widely reported decision by the government to dramatically increase probate fees for some estates in May.

By way of summary, the current flat rate of £215 or £155 will be increasing for estates worth £50,000 or more and, for estates worth

more than £2 million; these fees will be as high as £20,000.

In light of these changes, there is likely to be a rush of probate applications over the next 4 weeks to try to take advantage of the current, lower, fee. Concerns might arise for personal representatives, however, if there are any disputes concerning the validity of the deceased’s Will which have resulted in the entry of a caveat against the estate (as a caveat prevents the personal representative from obtaining the grant).

In our discussions with the Probate Registry, they have provided clarification on this point, confirming that as long as the application for probate is lodged before the fee increase in May, then the current fees should apply irrespective of whether a caveat has been lodged.

Accordingly, unless there are good reasons for not making an application, personal representatives and the beneficiaries of a deceased’s estate are likely to want to get their application to the registry as early in April as possible (even if a caveat has been entered) to avoid the estate unnecessarily incurring additional costs.

If you are involved in a probate or Will dispute and would like further advice on the increase in probate fees or more generally please contact Dino Sikkel at dino.sikkel@cripps.co.uk or call 01732 224 024.

 


How does the court value a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
24 March, 2017

In a previous blog we provided an overview of claims under the 1975 Act, including who can bring a claim, ‘When can I make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?’.

When deciding whether to make an award the court will consider whether, objectively, the distribution of the deceased’s estate (whether by Will or intestacy) failed to make reasonable financial provision for the claimant in the circumstances of the case.

What constitutes reasonable provision will depend on identity of the Claimant (see our previous blog post ‘Who can apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975?’). Broadly, provision for a spouse or civil partner will be based on what is reasonable for them to receive and for any other applicant what is reasonable for their maintenance (a lower standard). 

 

In assessing reasonable financial provision, the Court will take into account prescribed factors set out in the 1975 Act. These main factors the Court will consider are:

  • The financial resources of the Claimant;
  • The financial needs of the Claimant;
  • The financial resources and needs of beneficiaries of the Estate;
  • The value of the estate; and
  • The nature of the relationship between the Claimant and the Deceased.

If the Court concludes that provision or further provision should be made to the Claimant, it can exercise its powers to make an award to the Claimant.

If you would like to discuss making a claim under the 1975 Act, please contact Philip Youdan at philip.youdan@cripps.co.uk or call 01732 224 013.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.


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