Types of dispute. Guide to Estates & Wills

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1 PERSONAL LITIGATION TYPES OF DISPUTE Types of dispute Guide to Estates & Wills

2 2 In order for a Will to be valid, it must comply with certain formal requirements and if this is in doubt a claim can be made to challenge it s validity. Index PRACTICAL GUIDES FROM TEES LAW ESTATES & WILLS on the grounds of improper execution (provision for family & dependants) act proprietory estoppel claims Standing up for your rights takes courage and resolve. But it is a lot easier when you have a trusted advisor giving you the support and strength you need. With Tees Law on your side, starting or challenging legal proceedings doesn t have to be quite so daunting. We have over 100 years experience of successfully representing people in the full range of disputes that can arise. The benefit of that knowledge and the weight of our reputation with judges, experts and other professionals will be invaluable to your case. Speak with one of our specialist personal litigation lawyers. We will give you expert advice on the merits of your case and the best approach to adopt for what you want to achieve.

3 3 Testamentary capacity is the legal term used to describe a person s mental and legal ability to make or alter a valid Will or Codicil. ESTATES & WILLS on the grounds of improper execution In order for a Will to be valid, it must comply with certain formal requirements and if this is in doubt a claim can be made to challenge it s validity. What does Improper Execution mean? Section 9 of the Wills Act 1837 sets out the formalities required for a Will to be validly executed. In order for a Will to be valid:: The Will must be in writing The Will must be signed by the person making the Will (or by some other person in his/her presence and by his/her direction) in the presence of two witnesses and then be signed by the two witnesses, in the presence of the person making the Will, after he/she has signed The person making the Will must be over 18 years of age and of sound mind The person making the Will must do so voluntarily, without undue influence, must know what the Will says and intend his/ her signature to give effect to the Will If any of these requirements are not met, the Will is not valid and could be challenged. Contact us for more advise if you have any doubts about the validity of a Will Testamentary capacity is the legal term used to describe a person s mental and legal ability to make or alter a valid Will or Codicil. The main person able to prove that they had testamentary capacity when they gave instructions for their Will, being the, will not be available if and when a question arises as to their testamentary capacity. At Tees Solicitors, we can guide you every step of the way if you are bringing or defending a claim disputing testamentary capacity. Disputing Testamentary Capacity A person making or altering a Will must be capable of understanding: That he/she is making a Will and the nature and effect of making a Will The extent and value of his/her assets and possessions (in a broad sense) The claims of those who might expect to benefit from the his/ her Will Testamentary Capacity can be influenced by illness such as Alzheimer s or other types of dementia and also by when the person making the Will is heavily medicated. In addition the person making the Will must not have any disorder of the mind as shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties ie must not be suffering from an insane delusion.

4 4 I would strongly recommend them to anyone as I know they strive for excellence and the best possible result for their clients. Mr Y, Letchworth Section 1 of the Mental Capacity Act 2005 set out a presumption of capacity for the purposes of this Act a person must be assumed to have capacity until it is proved otherwise. Contact us if you believe a Will may have been completed without the required testamentary capacity The common misconception that a person s Last Will and Testament cannot be challenged is gradually fading. Challenges to Wills have been increasing over recent years and it is not unusual for a Will to be contested on the grounds that there was some form of coercion applied in the making of the Will. Undue Influence Claims In order for a Will to be valid undue influence must not have been applied on the Testator(the person making the Will). Testators should be free to make their Will in whatever way they wish. If they are compelled or coerced into making a Will then the validity of the Will can be contested on grounds of undue influence. Undue influence in connection with Wills means coercion although it does not necessarily mean physical force. The question the Court will ask is whether the person making their Will would say after all is said and done This is not my wish but I must do it Disputing a Will on the basis of undue influence can be difficult. The person alleging undue influence must adduce evidence to show that there was actual undue influence. Other grounds for contesting the validity of a Will such as improper execution or lack of testamentary capacity can be easier to establish evidentially. Tees Solicitors recognise that undue influence allegations can be particularly difficult to consider when concerned with the Will of a loved one. Our highly experienced team are able to provide you with a personal, sensitive, efficient, specialist service, ensuring that at all stages of the process your options are explained clearly and concisely. Call us now for some advice (provision for family & dependants) act 1975 If a valid Will or the provisions of the Intestacy Rules do not make reasonable financial provision for you it may be possible to make a claim under the (Provision for Family & Dependants) Act ( A 1975 Act Claim ) Claims under the 1975 Act You may be eligible to bring a 1975 Act Claim if you are: A wife or husband or civil partner of the A former wife or former husband or former civil partner of the (who has not re-married or formed another civil partnership)

5 5 We were dealt with in a courteous, timely and costefficient manner and would not hesitate to recommend Tees Solicitors for their professional service. Mr & Mrs K, Royston A co-habitee of the (i.e. someone who for at least 2 years immediately before the death has been living in the same household as the and as man and wife or civil partner ) A child of the A person treated as a child of the family of the Any other person who has been maintained by the immediately prior to death In addition the court must be satisfied that the died whilst classified as domiciled in England and Wales and that if there is a valid Will the provisions of the Will, or otherwise the operation of the Intestacy Rules, does not make reasonable financial provision for you. What is reasonable depends upon various factors set out in the Act which are applicable in all cases and on special factors applicable to the various classes of applicant. The factors considered include amongst other things the size and nature of the estate and the financial needs and resources of the applicant any other applicant and the beneficiaries. Every case is different and depends upon its facts. If you fall into one of the classes of applicants entitled to apply as detailed above and believe you have not been adequately provided for, you can pursue a claim under the Act. Contact one of our specialist team straight away as a 1975 Act Claim must be issued at court within 6 months of the date of grant of representation (i.e. the date the Will was proved). See the link to our Act Claims Quick Guide The duties of an Executor are clear as a matter of law. An executor is a person appointed in a Will to collect in the assets of an estate when a person dies and to ensure that they are distributed in accordance with the terms of the Will. However, it can sometimes be the case that an Executor fails to provide appropriate information or distribute the estate correctly (or at all). Claims for and against Executors and Trustees Sometimes Executors and Administrators (those appointed to deal with an estate when a person dies without a will) do not do their job properly and as a result the estate suffers a loss. For example assets may be sold at an undervalue or there may be a failure to collect in assets or realise them quickly. Alternatively there may be a failure to correctly identify beneficiaries or to interpret the Will or there may be unreasonable delay in distributing the estate to beneficiaries. Executors and administrators owe duties to the estate and to its beneficiaries. If they breach those duties they may be personally liable for the consequences of either maladministration or misappropriation. Tees Solicitors are experienced in assisting beneficiaries with concerns that an Executor is not performing their duties correctly. We can assist and advise in obtaining information or a distribution from the Executor or if ultimately necessary should there be a failure to carry out duties or the Executor is a person unfit to act as Executor we can apply to the court for their removal.

6 6 If an original Will has been lost, mistakenly destroyed or is otherwise not available, an application can be made to the court for an Order allowing Probate using a draft copy or reconstruction of the Will. After a Will is completed it is usually stored away in a safe place. Once the person that made the Will dies a Will may not be located if the whereabouts of the safe place are not known. Additionally accidents can and do happen and Wills can be destroyed or partly damaged. Disputes in respect of lost Wills A Will which was known to have existed and cannot be found is presumed to have been destroyed by the maker with the intention of revoking the Will. This presumption can be challenged but the burden of proving the existence and non-revocation of such a lost Will falls on the person seeking to have the lost Will proved. It may be possible to deal with the estate even if the Will cannot be located. If an original Will has been lost, mistakenly destroyed or is otherwise not available, an application can be made to the court for an Order allowing Probate using a draft copy or reconstruction of the Will. Under professional conduct rules solicitors are obliged to keep records of work carried out on behalf of clients and so reproduction of a professionally prepared Will can be a relatively simple task. It must however be remembered that an Applicant must also be able to show that the Will was actually executed ie completed. The court application is made by sworn statement confirming the existence of the original Will, setting out details of why it cannot be produced and giving details of what provisions were made in the Will. The Judge or Registrar may require that notice be given to any potential beneficiary who is prejudiced by proof of the Will, which would often be expected to give rise to a dispute. Tees Solicitors team can help you if a dispute has arisen about a lost or damaged Will. Disputes where mental incapacity results in referrals to the Court of Protection are becoming increasingly common. Tees Solicitors has experience of this kind of dispute and can provide you with valuable advice and help. Actions in the Court of Protection We have considerable experience in contested Court of Protection applications specifically including:- Contested appointment of attorneys Retrospective application for sale of home Retrospective application to make gifts out of surplus income

7 7 Proprietary Estoppel is where a person has made a promise to another who then suffers detriment by relying on the promise and that promise is not then kept. proprietory estoppel claims A promise or agreement in respect of an expected inheritance, made pre death and then not kept by the so that their Will or the operation of the intestacy rules makes a different distribution of assets, can in certain circumstances give rise to a claim under the principles of Proprietary Estoppel. Proprietary Estoppel is where a person has made a promise to another who then suffers detriment by relying on the promise and that promise is not then kept. In the scope of inheritance matters the promise would be along the lines that when I die you will inherit my.... Claims relating to Proprietary Estoppel Examples of how these inheritance disputes can arise are often found in a farming context. For example a child works on his parent s farm over many years for no or little pay. The child gives up the chance of a better career to work on the farm because the parent promised that the child would inherit the farm on the death of the parent. The parent reneges on this promise leaving the farm to others in his Will or by failing to complete a Will so the farm is to be distributed in accordance with the intestacy rules. This can apply in other situations like a family business. And it need not necessarily be a family relationship that creates the claim. It is crucial to keep in mind that the applicant must be able to show they have suffered a detriment in relying on the promise. If you feel that you have a potential proprietary estoppel claim then talk to one of the specialist team at Tees Solicitors. Unfortunately things can go wrong whether your Will is prepared by a solicitor or other Will writers (banks, financial advisers, accountants and stand alone Will writing businesses are sometimes responsible for the preparation of Wills). If you consider the Will writer responsible for the Will of your loved one made mistakes it may be possible to pursue a professional negligence claim. Professional Negligence Claims Examples of Will drafting negligence: Failure to check testamentary capacity Failure to check instructions Failure to check intentions Failure to check formalities and proper execution of the Will Delay in preparing a Will and the Testator dies before completing the Will

8 teeslaw.co.uk Failure to give appropriate tax advice Poor drafting leading to difficulties or disputes as to the correct interpretation of the Will Why not take advantage of our professional negligence solicitors team expertise. We can assist you with your claim for professional negligence against solicitors or unqualified Will writers. Where an individual does not have mental capacity to make a Will for themselves a Statutory Will can in certain circumstances be made by the Court of Protection. The need for a Statutory Will can arise in a number of different circumstances. For example all the beneficiaries to an existing Will made when the person had mental capacity may have all since died, the circumstances of the person may have changed due to health or relationship changes or there may be tax planning benefits. Those who may potentially benefit under the terms of a Statutory Will or the existing Will or the provisions of the intestacy rules may have different views about what terms should be included in the Statutory Will or even as to whether a Statutory Will should be made at all and this can give rise to disputes. How is a Statutory Will obtained An application can only be made on behalf of a person that is over 18 years old and lacks the mental capacity to make a Will for themselves. The Court of Protection in making a Statutory Will tries to make the Will that the incapable person would have made were they capable. The Court seek to ascertain the person s wishes and determine his/ her best interests. The Court will look at various factors including the person s: Past and present wishes Feelings, beliefs and values Any other factors that they would be expected to consider if he/ she was able to do so The procedure is comparatively expensive and is therefore only likely to be appropriate in cases involving reasonably substantial assets. In addition a considerable amount of evidence is required so a Statutory Will may not be appropriate in every case. If you wish to discuss please contact a member of our team. This Guide has been prepared to provide useful information but should not be considered as a substitute for advice on any specific case. Tees Law is a trading name of Stanley Tee LLP regulated by the Solicitors Regulation Authority. Registered in England and Wales number OC / Bishop s Stortford Cambridge Chelmsford Great Dunmow Northampton Saffron Walden