Trust, estates & will disputes

Can Grandchildren contest a Will?
8 December, 2017

When a grandparent passes away, there are two ways a grandchild may challenge their Will. If the grandchild thinks the Will is invalid, they can challenge it on this basis. Alternatively, grandchildren can

sometimes bring claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’). We will look at these in turn. 

Invalid Will

Anyone can challenge a Will on the grounds that the Will is invalid. A Will is invalid if:

  1. The Testator lacked the mental capacity to make a Will;
  2. The Testator didn’t know of or approve of the contents of the Will;
  3. The Will was not correctly executed;
  4. The Testator was subject to undue influence;
  5. The Will is forged or fraudulent.

If the Will is declared invalid, there may be an earlier Will that is valid. If not, the estate will be distributed according to the intestacy rules. These state a surviving spouse inherits half the estate and the other half if divided between the deceased’s children; if one of the children has died but left their own children, their share goes to their children – the grandchildren of the deceased.

Financial support

To pursue a claim under the 1975 Act, you must first establish that you are eligible to do so. There are a number of categories of eligible claimant but, for grandchildren, the most relevant are either that they were dependent on the Deceased or were treated by them as a “child of the family”. If eligibility can be shown, the Court will consider all of the circumstances of your claim to decide if an award should be made.

If you think you may have a claim against your late grandparent’s estate on these grounds, please contact a member of the Specialist Disputes team to discuss your situation further and click here to view our Guide to Will Trust and Estate Disputes.

 


Inheritance disputes increase in number
7 November, 2017

In August 2017, The Financial Times reported  that there had been a 36% surge in inheritance disputes being brought to the High Court in 2016.  158 claims were brought under the Inheritance (Provision for Family and Dependents) Act 1975, up from 116 such claims in 2015.

This represents the tip of the iceberg – most inheritance claims are resolved privately before Court proceedings are issued or before trial.

Why then are this type of Will dispute increasing in number? To answer this, you need to understand who is bringing these claims, being family members or dependants who believe that a Will fails to make reasonable provision for them. In our experience there are 

many reasons why such people are motivated to dispute a Will including: the presence of increasingly complex family structures making the division of estates more challenging; the value of estates increasing and hence supporting such claims; an increasing awareness of this type of claim and a willingness to pursue it.

To ensure your Will clearly disposes of your estate as you wish and to safeguard, as far as possible, against claims being made after your death, we recommend preparing your Will with the assistance of a solicitor, who can advise on potential problems, and ensuring you update your Will regularly. Conversely, if you think you may be in a position to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, contact our Specialist Disputes team using the contact details on this page to discuss this further.

If you are concerned an executor is not appropriately carrying out their duties 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.

 

 


Who can decide what to do with someone’s ashes?
26 October, 2017

Disputes often arise following someone’s death and resolving problems is increasingly complex as family structures become less formulaic. Concerns about where someone should be buried or what should happen to their ashes can become an issue.

Ashes (and bodies) are not property and cannot pass under a Will; a Will can contain an individual’s wishes regarding their burial, and

what will happen to their ashes if they are cremated, but these are only their wishes and are not enforceable by law. 

The obligation for arranging funeral directions lies with the individual(s) with custody of and responsibility for disposal of the body. These individual(s) may dispose of the body and ashes as they deem appropriate. They are under no obligation to take other relatives’ wishes into account.

The custodian of the body and ashes is the executor of the Will, or if there is no executor then residuary beneficiaries. If there is no Will, then Rule 22 of The Non-Contentious Probate Rules 1987 lists the hierarchy of individuals who may apply for probate (and would be the custodian of the body and ashes); the first four, in order of priority are below:

  1. Surviving spouse; if none, then
  2. Children or grandchildren; if none, then
  3. Parents; if none, then
  4. Siblings (if none then see full list here).

A problem can arise when executors, residuary beneficiaries or family members in the same category, such as a mother and father, disagree about what to do with someone’s ashes. In these cases arguments occasionally come to court to be resolved. One example is the case of Re JS which was brought to the court in 2016 in anticipation of these issues arising; there was extensive coverage of this case, which involved a minor’s decision to be cryopreserved after her death, which was something her estranged parents disagreed about (in Re JS (Re JS link), the court ordered JS’s mother would be responsible for dealing with her body after death and prevented JS’s father from intervening).

If you are concerned an executor is not appropriately carrying out their duties 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.


Disputes with Executors – can you remove or replace a problem Executor?
20 October, 2017

We are commonly asked to advise beneficiaries on disputes with Executors and Administrators. One of the key issues where there has been a breakdown is whether they can be removed.

If the named Executor has failed to apply for probate following a written request for them to do so, the next of kin or a beneficiary can apply to court for an order appointing someone else to apply for probate and administer the estate.

It is more difficult to remove an Executor or Administrator once appointed. The court will only do so if it is established that removal is in the interest of the beneficiaries and furthers the administration of the estate. Examples of where the court can order this are where the executor is:

  • unsuitable (e.g. failing to keep accounting records or mismanaging the estate) and failing to properly fulfil their duties;
  • incapable due to a mental or physical disability preventing them from carrying out their duties; or
  • disqualified due to being convicted of a crime and imprisoned.

The court can remove an executor if there has been an irretrievable breakdown with the beneficiaries, as this can make them unsuitable. In those cases, a practical approach is to propose the appointment of an independent administrator, which is a solution the court may impose if not agreed.

If you are concerned an executor is not appropriately carrying out their duties 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.

 


Sons battle step-father over late mother’s estate
10 October, 2017

While many may trust their chosen beneficiaries to provide for other family members, the emotional upheaval following death can lead to unexpected disagreements and conflict within a family. Careful consideration while drafting your Will is essential to ensure all loved ones are provided for and reducing the risk of conflict.  

A recent example is the estate of Lynda Bellingham who passed away leaving a husband of nine years and two sons from a previous relationship. Ms Bellingham updated her Will during the last year of her life, while terminally ill, leaving her estate solely to her husband, Michael Pattemore. Her two sons, Michael and Robbie Peluso, were left no specific inheritance and argued their mother believed Mr Pattemore would provide for them after her death. This, they claim, he had not done which left them having to take legal action against their step-father to seek financial support.

To avoid Will disputes, we generally suggest Wills are reviewed every five years with additional reviews following life-changing events such as marriage, births, etc. By reviewing regularly, you can ensure your estate will be distributed as you wish, carefully providing for all those you would like considered. We also recommend being open and managing expectations where possible so loved ones are not shocked when a Will is disclosed.

Ms Bellingham may have trusted Mr Pattemore to provide for her sons, but she could have ensured their financial well-being by specifying her wishes or by placing her inheritance in a trust. Trustees would ensure the inheritance was wisely invested, provided for Mr Pattemore during his lifetime and, ultimately, would ensure capital preservation for the sons.

If you are concerned your Will does not adequately provide for all your loved ones and dependants, or if you believe you should have received inheritance which you did not, and would like to know whether legal action is an option, please contact the Specialist Disputes team and ask to speak with Philip Youdan or Dino Sikkel on 01732 224 000


1 2 3 19