Trust, Estates & Will Disputes

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


Forged Will ‘found’ in Doritos packet
4 October, 2017

It is challenging to successfully contest a Will based on fraud or forgery however, in some cases, the evidence is sufficient for a judge to declare a Will invalid on these grounds.

In 2013 Marsha Henderson’s husband (fifty years her senior), Newton Davies, died. His Will left Ms Henderson £25,000. The rest of his estate (around £575,000) was left to his daughter and a friend of his.

After this information was disclosed, Ms Henderson claimed to have located a more recent Will, which had been hidden in the attic, inside an empty Dorito packet; in this version Ms Henderson inherited the bulk of the Estate.

Generally a Will is disputed on one or more of five grounds:

  1. The Testator lacked the mental capacity to make a Will;
  2. The Testator did not know of / 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.

Judge Gerald commented that the Will provided by Ms Henderson was “ridiculous”. The unlikely way the Will was hidden, when it was found, and the fact it referred to ‘her’ not ‘his’ last Will fuelled concerns the Will may not have been genuine. A handwriting expert assessed the document and it was concluded the second Will was a forgery. Mr Newton’s estate was distributed following the terms of the first Will, leaving the majority of his estate to his daughter and a close friend.

Whilst forged or fraudulent Wills are hard to identify, if an expected beneficiary has been left out or if one person unexpectedly benefits, largely excluding others, then specialist advice should be obtained on whether the Will can be challenged.

If you think a Will may be open to challenge please contact our Specialist Disputes Team and click here to view our Guide to Will Trust and Estate Disputes.

 


Downton Abbey-esque inheritance saga: reality is more complex still
11 September, 2017

 

Most individuals are free to choose how to dispose of their estate, with a Will directing the distribution of their assets. Hereditary peerages (individuals whose title may be inherited) are different, passing in a prescribed way, often through the male line. Most English peerages (and sometimes the land that is associated with that peerage) pass to the eldest son and, should no son be born, the title will cross to a male relative.

This issue, popularised in a plot of ITV’s Downton Abbey, has been brought to fore again by the death of Robin Neville, the 10th Baron Braybrooke of Audley End House, Essex, in May 2017.

Lord Braybrooke left three daughters but no son. Amanda Murray, the eldest, manages the estate. On her father’s death the estate passed to a distant female relative, following a covenant (condition) created by the 7th Baron which stated if any future Baron had no son, then the estate’s ownership would revert to follow the 7th Baron’s line. The estate has, in effect, been held in Trust. As Robin Neville had no male heir, the Trust ended and the ownership reverted to the 7th Baron’s covenant. Lord Braybrooke’s title passed separately, to the Baron’s fourth-cousin once-removed, a male relative.

British laws governing hereditary peerages are complex. Royal succession laws were changed in 2013, ensuring the Duke and Duchess of Cambridge’s eldest child would be first in line to the throne, regardless of gender. Changing succession laws for all peerages would require close examination of individual titles (most peerages are created by individual legislation directly from the monarch).

For further information about Will disputes and disputes involving trust and estates, please click here to view our Guide to Will Trust and Estate Disputes.

 

 

 


Son Jailed For Forging Own Mother’s Will
9 August, 2017

Disproving a Will on the basis of fraud is difficult and consequently very rare. The burden of proof is high and the quality of expert testimony (e.g. handwriting experts) is notoriously variable.  However, in a case in May 2017, a son was found guilty of forging his own mother’s Will following her death.

Mr Stewart Caygill, 53 from Peterlee, Co Durham, was jailed for four years after his brother Philip spotted a spelling mistake in their mother’s Will (Philip spelt with two l’s).  Philip was subsequently able to prove the signature was also forged, using a handwriting expert and letters sent to him by his mother during her life-time.  That no allowances were made for Mrs Caygill’s beloved dogs or her favourite charities increased Philip’s suspicions.  The prosecution asserted Stewart had already stolen several thousand pounds worth of china and jewellery from his mother and had charged her £4,000 to mow the lawn.  As the Will was declared invalid Mrs Caygill’s estate will be distributed in accordance with the intestacy rules.

Stewart’s defence lawyer stated the forgery had occurred in ‘a moment of madness’ though Judge Deborah Sherwin of Teesside Crown Court disagreed, commenting: “I am left with the feeling I am unable to believe a word you say about anything, and you are scheming, devious, deceitful and opportunistic”.

The significance of this ruling lies in the weight of evidence required to successfully challenge a Will on the basis of fraud or forgery. Sufficient evidence was provided by Mr Philip Caygill to challenge (what otherwise would have remained) his mother’s last Will and Testament. 

There are five legal main ways you can challenge the validity of a Will. They are:-

  1. The Testator lacked the mental capacity to make a Will;
  2. The Testator did not know of / 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.

Proving fraud is often the most difficult as the burden of establishing this is high. Anyone concerned that the Will of a friend or relative did not represent their wishes, and hence may be invalid on one or more of these grounds, should instruct a solicitor to make investigations to establish how the Will came to be prepared and provide advice on whether this reveals evidence to support a legal challenge.

The best protection against a challenge to a Will is to ensure your Will is drafted by a solicitor who prepares a detailed note of your wishes and that the necessary formalities have been complied with. It is also advisable to review your Will every five years or after any major change in circumstances (e.g. a birth, marriage or death in the family or amongst the benefactors).

If this article raises any concerns for you regarding a loved one’s Will, please contact Philip Youdan at philip.youdan@cripps.co.uk or call 01732 224 013. 

 


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