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Probate disputes

Please note that the information herein is of a general nature and you should not act or refrain from acting on it without professional advice on the specific facts of your case. No liability is accepted by the author or Sykes Anderson Perry Limited in respect of this article. Law is a complex subject and this article is a basic outline only and is intended only as a general guide. Nothing herein constitutes financial advice.

Death changes everything. Emotions become much stronger and family disputes which have been simmering for years can come out into the open. The deceased’s intentions may make little sense to a disappointed beneficiary reading the Will. It is a difficult time to step back and think carefully about the future. Action taken now can affect the relationships between family members until the end of their lives.

Some reasons for challenging a Will

Common reasons for wanting to challenge a Will are (1) incapacity of the deceased, (2) undue influence on deceased, (3) existence of a later Will, (4) defects in the signing and witnessing of the Will, (5)forged Will, (6) constructive trusts i.e. property although in the name of the deceased belongs to someone else, (7) poor administration of the estate by the executors and(8) that a dependant has not been sufficiently provided for under the terms of the Will.

Timing

It is almost always best to take action early on. This is because it usually takes some time for the executors to obtain a grant of probate and in straightforward cases putting a caveat on the estate should bring matters to a head. This prevents executors from obtaining a grant of probate but can be “warned off” with costs warded against you if there is no legitimate reason for entering it at the Probate Registry. In many cases putting a caveat on the estate will not be the appropriate way to proceed.

Constructive Trusts

This is a less well-known way to challenge a Will. It involves claiming that the deceased did not own an asset ostensibly in his name. A simple example is money received by the deceased’s minor child at the time which is invested in say a rental property which was put in the deceased’s name. In such a scenario the deceased’s child owns the property and it is not part of the deceased’s estate and not part of the probate. It is said to have been held by the deceased on a constructive trust.

Foreign assets

English Wills may purport to deal with foreign property. This is an area where unexpected problems often arise. Specialist advice at the outset usually results in a substantial saving. Sykes Anderson Perry solicitors can assist with probates involving French and Spanish assets.

March 2019
David Anderson
Solicitor-Advocate and Chartered Tax Adviser