Contentious Trusts and Probate

A Will can be challenged where a testator lacked testamentary capacity, or if the deceased didn’t understand what they were doing by making their Will, perhaps as a result of dementia or other cognitive impairment issues that affect mental agility. Wills can also be challenged where a testator lacked sufficient knowledge of the content of their Will, or failed to approve it, perhaps owing to fraud or possibly as a result of some mistake. Undue influence can invalidate a Will and it occurs when someone pressures a testator into making a Will that they would not otherwise have made. Fraud involves deliberate deception. Wills can also be invalid through technical failure associated with the execution phase, before witnesses. An effective challenge to a Will requires robust evidence, and a claim should be investigated and predicated promptly.

The Inheritance (Provision for Family and Dependants) Act 1975 permits certain categories of claimant to claim reasonable financial provision from estates that do not provide adequately for them. Spouses, former spouses, some cohabitants, children, and indeed anyone maintained by the deceased fall into this category.

Courts consider various factors including the financial needs and resources of the parties, obligations the deceased might have had, the size of the estate and disability. Spouses and some former spouses can claim what is reasonable in all the circumstances of a case, whilst other claimants claim based on what they need for their maintenance. Claims must be filed within six months of probate being granted.

Claims based on a lack of capacity should be brought before an estate is distributed (and a person can enter a caveat to prevent an executor extracting a grant if need be). A court may refuse to hear a challenge if there has been excessive delay and/or where the estate has been distributed, and to disturb final distributions would cause problems.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought within 6 months of the date of a grant of probate (or letters of administration if the matter concerns an intestacy).

Courts can remove executors who are unsuitable, incapable of acting, have interests that conflict with the proper administration of an estate, or have breached their duties. However, removal is considered a very serious step and courts require robust evidence based on clear grounds to make such orders. Disagreements between executors and beneficiaries don’t automatically justify removal. Executors must have committed serious breaches or be genuinely unable to act properly. Alternative remedies include the court giving directions on how an estate should be administered by the executors. Removing executors is expensive and time-consuming.

If you lose a Will challenge or Inheritance Act claim at trial, you’ll usually be ordered to contribute to the winning side’s legal costs and you will also have paid your own legal costs. Contentious trusts and probate litigation is expensive, and costs can be substantial – depending on the complexity of the dispute and whether the case proceeds to trial. Cost consequences of losing a claim at trial are serious and can be life changing. We provide realistic advice on prospects of success before you commit to litigation. Some cases are funded through conditional fee agreements where you only pay if you win. However, you can still be liable for the winning side’s costs even where you have a conditional fee agreement in place.

Yes, most contested trusts and probate, disputes, as well as Inheritance Act disputes can be settled through negotiation and ultimately mediation, i.e. without the need for court proceedings. Mediation brings parties together with an independent mediator to explore settlement options. Courts expect parties to attempt alternative dispute resolution before filing proceedings.

Settlement is usually quicker, cheaper, and less emotionally damaging than litigation. However, mediation only works if all parties genuinely want to resolve the dispute. Where positions are entrenched or someone refuses to engage, court proceedings may be necessary. We advise on the most appropriate approach for your circumstances.

Trustees must act in the best interest of beneficiaries, following the trust terms, investing trust assets properly, keeping accounts, avoiding conflicts of interest, and exercising powers reasonably. They must act unanimously unless the trust deed states otherwise and trustees can be personally liable for breaches that cause loss. Beneficiaries can sue trustees for breach of trust and seek to reverse transactions, recover losses, or even remove trustees. Courts can direct trustees on difficult issues, and protect them from liability in following court orders.