Wills, Trusts, Probate, and Attorney Disputes

In circumstances where there is suspicion surrounding the validity of a loved one’s last Will, it is possible to challenge it on various grounds including lack of testamentary capacity, undue influence, fraud or a failure to comply with the proper formalities for executing a Will.

We can undertake investigations into the circumstances surrounding the making of the disputed Will, assess the evidence quickly and advise on the prospects of successfully bringing a claim and the risks involved.

Whilst there is no strict time limit in place for bringing a claim, it is best to act as soon as possible in taking expert advice from our understanding and professional team.

If you have been left out of a Will or feel that the provision made for you in a Will is insufficient or no Will was executed and you do not benefit under the intestacy rules – you may be able to make a claim under The Inheritance (Provision for Family and Dependants) Act 1975.

In certain circumstances the Courts will consider a claim which seeks to change the way in which one’s estate is to be distributed, whether or not one has made a Will.

The above act allows certain categories of people to bring a claim against an estate, where they feel that an otherwise valid Will, or the general rules on intestacy, fail to make sufficient provision for them and they were financially dependent on the Deceased.

There is a strict time limit for bringing for bringing a claim under the 1975 Act so taking early legal advice is essential.

Executors (or Administrators) of an estate have certain duties to beneficiaries when dealing with an estate. However, there is often confusion as to when, how and what information the beneficiaries are entitled to.

If you are a beneficiary of an estate and do not feel you are being provided with information or you have concerns about how the Executor is managing the estate, please contact us for help. We can advise you on your options and if appropriate issue proceedings at Court to remove the Executor from their position.

We can equally advise Executors who face challenges in managing the administration of the estate whether because of difficult beneficiaries or uncertainty over how the estate should be administered.

Trustees must act loyally and prudently. They owe a fiduciary duty to keep beneficiaries informed and this includes providing trust accounts. Where a Trustee makes a decision that the beneficiary considers improper the trustee may be liable for breach of trust.

Disputes commonly arise over investments, failure to follow trust terms, withholding information or claims one trustee has acted improperly.

Remedies include orders for accounts, removal of trustees or restoration of trust assets.

We can advise you on the information you are entitled to receive from the Trustee and act for you in taking steps to remove the Trustee and hold them to account.

Sometimes, disputes can arise between co-owners, spouses, cohabitees, or other loved ones about the extent of their respective interests in a property owned jointly or solely by one of them.

These disputes are known as ‘Trust of Land Disputes’ and are subject to the Trusts of Land and Appointment of Trustees Act 1996 (‘TOLATA’). They can arise whilst the owner(s) of the property are still alive or on their death.

Typically, a TOLATA claim can arise when:

• one co-owner believes they have a greater beneficial interest in the property than that which they are currently legally entitled to.
• A promise has been made to give someone a beneficial interest in a property and they don’t deliver on that promise (known as Proprietary Estoppel).

Proprietary Estoppel and/or promissory claims reflect the legal principle that, in certain circumstances, it is unfair to allow a person to go back on a promise.

The Courts will intervene if a deceased person has, during his lifetime, made a promise to another of financial provision on his death and fails to make such provision.

This will only be so, however, if the recipient of the promise is able to show:-

1. That the promise was made; and
2. They are now worse off as a result of things that they have done in reliance on that promise

TOLATA disputes are often very complex and can turn heavily on the available evidence. As a result, they can be costly claims to bring, however, given that an interest in a property is at stake, there is often a great financial benefit to bringing a claim.

It is therefore important to seek independent legal advice at the earliest opportunity if you consider that you may be entitled to bring a claim.

Disputes over a funeral, burial or the ashes of a loved one are more common than you might expect.

Recent reports suggest disputes over the final resting place of a family member arises in around one quarter of deaths in the UK.

We can provide sympathetic and expert advice on issues such as:

• Who is entitled to decide funeral arrangements.
• Who is entitled to receive the Deceased’s ashes.
• The enforceability of the Deceased’s known final wishes.

In these difficult circumstances it is important to seek prompt legal advice.

The Court of Protection (CoP), under the Mental Capacity Act 2005, makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made because they ‘lack mental capacity’.

If a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is already in place, an Attorney or Attorneys will have been named, to make decisions on a vulnerable person’s behalf.

If, however, an individual has lost mental capacity without having previously granted a Power of Attorney, those who seek to look after their interests will apply to the CoP to be recognised as a Deputy which will allow them to handle their financial affairs and / or make welfare decisions. The Deputy could be a family member or a care professional.

An Attorney under a Lasting Power of Attorney or a Court-appointed Deputy must act in the donor’s best interests and keep records of decisions and spending.

However, disputes can arise including:

• Disagreements over the appointment of a Deputy or an Attorney
• Financial decisions or gifts (e.g. giving away a vulnerable person’s valuables) by a Deputy or an Attorney
• Concerns that a Deputy or an Attorney is not acting in the best interests of the vulnerable person

If you suspect misuse, neglect or fraud we can advise on protective steps including injunctions, recovery actions, reporting to the Office of the Public Guardian and applications to the Court of Protection.