Trust, Estates & Will Disputes

Will I incur costs if I bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
10 February, 2017

Will I incur costs if I bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

A claim under the 1975 Act is a contentious process and both you and the other party will incur legal and court fees (‘costs’).

Once judgment has been reached in respect of the actual claim, the court has discretion to decide who should pay the costs incurred by the parties involved. It will decide whether each side should bear their own costs, whether costs should come from the Estate or whether costs should be paid by one party to another.

The general rule in a Will dispute claim is that the unsuccessful party will be ordered to pay the costs of the successful party. However, the court can make a different order having considered all the factors of the case. For example the parties conduct both before and during the case, offers made by the parties and a refusal to engage in alternative dispute resolution, such as mediation.

Most Will disputes are resolved before trial and, as part of any settlement, the parties will reach an agreement as to costs. For more information about settling claims see our sister blog’s recent blog post Settling a Professional Negligence Claim (the principles remain the same).

If you do consider bringing a Will claim, before taking action, your legal adviser should discuss all aspects of costs with you and consider issues including risk and proportionality and the availability of litigation insurance.

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.

 


I think someone lacked capacity when they made their Will – what can I do?
6 January, 2017

I think someone lacked capacity when they made their Will – what can I do?

A testator (being a person who makes a Will) must have testamentary capacity at the time the Will was made in order for that Will to be valid.

 

 

This means that they must

  • understand the nature of making a Will and its effects;
  • understand the extent of the property which they are disposing;
  • are able to comprehend and appreciate the claims to which they ought to give effect; and
  • not be suffering from a disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

 

 

The level of understanding required by this test varies according to the complexity of the Will itself, the testator’s assets and any claims upon the testator.

If a testator did not have capacity at the time instructions to prepare the Will were given and when it was signed, it not be valid.

If the testator did have capacity at the time they gave instructions, but not when they sign the Will, the Will may still be valid if certain conditions are satisfied.

A Will made when the testator had capacity will remain valid if they subsequently lose capacity, provided they do not make changes to the Will after capacity has been lost.

If you are concerned about the validity of a Will you can challenging it. In the first instance, you can make enquiries of the solicitor who prepared the Will (see our blog post ‘Obtaining information about a disputed Will’) or consider entering a caveat to delay probate being granted (see our blog post http://www.cripps.co.uk/will-disputes/caveats-what-why-and-how/)

Further help

If you need advice on challenging or defending a disputed Will on grounds of capacity, 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.

 


Funeral Arrangements – what if the person dies in England or Wales but lives (‘is domiciled’) elsewhere?
5 December, 2016

In our previous blogs on the topic of funeral arrangements we considered who has the right to make decisions about a person’s funeral. In our final blog in this series, we consider what happens when someone dies in England or Wales but lived (was ‘domiciled’) elsewhere.

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If there is a dispute about who should take charge of the body, the court can appoint personal representatives to do so.  In Ibuna v Arroyo [2012] EWHC 428 (Ch) the deceased died in London but was domiciled in the Philippines and was resident there and in California.  His daughter, his estranged wife and his partner at the time of his death could not agree over the funeral arrangements.  He had left a Californian Will appointing his daughter as his executrix and a Californian advance healthcare directive (Living Will) authorising his partner to make arrangements for the disposal of his body.

The daughter and partner applied to the English High Court for letters of administration allowing them to make arrangements.  The estranged wife thought she should take charge. 

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The court granted the application after considering expert evidence that the Californian Will would be recognised in the Philippines and the extent to which that Will was effective under English law.  The court decided that the special circumstances allowed its power to appoint the deceased’s partner as joint administrator because of the wishes expressed in the deceased’s Living Will.  In Philippine law, the deceased’s wishes, which had been stipulated in writing and orally to his children, took precedence over the wishes of his widow.

Further help

If you would like more information about what you should do if you are responsible for dealing with a deceased person’s body or are unable to agree what should happen to a body, 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.

(Part 4 of 4 blogs)


Funeral Arrangements – who has the right to decide?
28 November, 2016

Our last blog in this series considered the impact of  a Deceased’s wishes on the disposal of their body. In this blog we consider what can be done if no one has the right to make decisions about funeral arrangements or if various parties with equal rights cannot agree.

In these circumstances, they can ask the court to decide who has the right to decide the funeral arrangements and what should be done.   The court’s overriding concern is to ensure that the body is disposed of with proper respect and dignity.  It will consider these factors:

  • The deceased’s wishes for funeral arrangements.
  • The wishes of family and friends.
  • The place with which the deceased was most closely connected.
  • Practicalities, e.g., is there a good reason to fly a body thousands of miles for burial?  Sometimes there will be a good reason and sometimes there won’t.

 

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If several people with equal rights to decide what should happen to the body cannot agree, the court can use its inherent jurisdiction, or power, to make a final decision.  In Anstey v Mundle and another [2016] EWHC 1073 (Ch), the daughters of a man who died in the UK, where he had lived for many years, disagreed about moving his body back to Jamaica for burial.  This was a wish expressed in his Will and to a friend but contrary to what some of his daughters thought he really wanted.  The judge applied the factors above and decided the body should be flown back to Jamaica.

Further help

If you would like more information about what you should do if you are responsible for dealing with a deceased person’s body or are unable to agree what should happen to a body, 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.

In our final blog of the series we will look at what can be done when someone dies in England or Wales but lived elsewhere.

(Part 3 of 4 blogs)


Funeral Arrangements – the deceased’s wishes and scientific research or organ donation
21 November, 2016

In our first blog in this series we considered some general rules regarding funeral arrangements.  This week we are looking at what to do when the deceased has a specific wish regarding what should happen to their body after death.

The deceased’s wishes

If the deceased has expressed wishes about disposal of his or her body, either in a Will or in some other record, that gives the personal representatives a useful steer.  They are not, however, bound to follow those wishes.  Their obligation is to dispose of the body (otherwise they are committing an offence) but they can take their own, or other people’s, views into account. 

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If the personal representatives do decide to do something other than the deceased’s wishes, they need to bear in mind that only reasonable costs will be allowed out of the estate.  If they follow the deceased’s wishes as set out in the Will, or have the agreement of the residuary beneficiaries, this is less of a concern. 

Donating the body for scientific research or organ donation

If the deceased has left written and signed consent to donate his or her body for medical or scientific purposes, or for organ donation, that is enough to make it lawful to dispose of the body in that way.  The deceased’s wishes usually take precedence over family members’ views – and doctors can insist on the donation – but, if the family objects very strongly, the doctors can also decide to accept those views over the deceased’s wishes. 

If there is no evidence that the deceased did, or didn’t, want his or her body used in this way, the person with responsibility for disposing of the body can decide what to do.  If they want to donate the body, or organs, they must first make reasonable enquiries to check whether the family object.

Further help

If you would like more information about what you should do if you are responsible for dealing with a deceased person’s body or are unable to agree what should happen to a body, 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.

In our next blog in this series we will consider who has the right to make decisions regarding funeral arrangements, particularly when there is a disagreement.

(Part 2 of 4 blogs)


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