Trust, Estates & Will Disputes

A Will revolution – danger ahead
13 July, 2017

Today has seen the announcement from the Law Commission that the current rules around making a Will should be overhauled.  It has suggested that the rules be significantly relaxed to make it easier to make a Will and is running a consultation until November to see what people think.

There is no doubt that such a change to achieve that objective is a sound one.  Whilst I have been practising law (for nearly 25 years), published analysis has consistently shown that approximately 40% of the adult population do not have Wills.  That can create all sorts of problems from not taking advantage of legitimate ways to minimise tax to unintentionally finding your assets are left to people you did not intend to benefit following your death.  A key driver for this consultation is the fact that, for those who fall within the 40%, many will not be married or in a civil partnership and are cohabiting. The current rules in that situation mean no provision is made for the partner who survives them.  They have to make a claim which can be very expensive, protracted and create huge issues between those closest to the deceased.  I should know as my firm deals with those types of case.  Nevertheless, the driver to encourage rather than discourage people to make Wills is hardly the stuff of heated debate.

It seems there is a feeling that the ‘difficulty’ in making Wills is putting people off.  Yes it is true that to make a Will you have to follow a process but, to put it simply, is it really that hard to draw up a Will setting out clearly what you want and getting that signed in front of 2 witnesses?  The Commission thinks so and its proposals follow a lengthy review it has carried out since 2015 which has included speaking to many interested parties.  It is suggesting that the formalities be dispensed with.  This is potentially huge.  It also creates a foreseeably bigger problem if followed through.

The proposals would potentially allow a text message, a voicemail or any type of written note to be treated as a Will.  Simple, yes, but fraught with danger.  It is suggested that a judge would have to decide in this situation whether a text was an accurate summary of someone’s wishes. This is where the danger lies.  How do you know?  We have many vulnerable people living today in an ever aging population.  Some are affected by conditions such as dementia, others susceptible to the subtle (or downright overt and menacing) pressures that can be brought about by family relatives seeking, to put it bluntly, more money.  The proposals give rise to real concerns around the risks of fraud.  It is very easy to see that it wouldn’t be long before a case came to court around a text message that turned out to have been typed by someone else for their own gain.  What about the situation where someone has a temporary falling out with their children and in a fit of pique produces a new Will on a whim because its easy to do and then relations are normalised the following day?  If they do not do something about that Will there will be all sorts of problems the family would face.  

An even bigger problem might surface where the individual does not have the necessary mental capacity to make a Will.  Sometimes under the current law this is established when solicitors are instructed.  If they believe the person lacks capacity then they will not proceed and draft a Will.  If someone can simply from the comfort of their own armchair make what they think is a valid Will under the new proposals but in fact they lack capacity, this will create even more issues for others to pick up.

As a firm which has a team specialising in Will disputes these proposals give rise to the very real prospect of significantly increased work for us and other firms who also specialise in this area.  It is unfortunately all too common that we see family members, and others, bitterly arguing over a document that may, or may not, represent the true wishes of the deceased.  Death does on occasion bring out the worst (and sometimes the best) in people.

The Commission readily acknowledges the potential dangers and is seeking views during the consultation process on this and a number of other issues, which can not be covered off properly within this blog.  It proposes, for example, to reduce the age someone can make a valid Will from 18 to 16. 

If you feel you have something to contribute then please go to www.lawcom.gov.uk/project/wills and download the consultation paper (be warned it is nearly 300 pages long) and make representations as you wish.


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.

 


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