Contentious Probate

Our team is ranked by Chambers and Partners for Private Wealth Law, with Head of Will and Trust Disputes Lucinda Brown having achieved the highest Band 1 ranking for Private Wealth Disputes. We are also highly ranked in the Legal 500 for our Contentious Trusts and Probate expertise. Lucinda is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS), further demonstrating her exceptional expertise.

With decades of experience in the full range of contentious probate matters, our team can provide seasoned expertise and advice on exactly what you can expect and what works. We have a proven track record of success with even the most challenging matters.

A genuine understanding of what your situation means to you is at the heart of our service. We recognise that careful handling is needed and that no two disputes are the same, so we will work closely with you, making sure the legal solutions we suggest match your priorities and concerns. Our team will do everything we can to remove stress while making sure we always fight for your interests.

You can be confident that we will always tell you whether we believe you have a case or not and the likely outcomes of any course of action you may choose to take, as well as the possible costs involved.

Will disputes by their very nature arise at a time of great stress and vulnerability for all involved.

We try to resolve disputes without recourse to the court so as to avoid significant costs being incurred by all parties.

We can advise on:

• lack of mental capacity to make a will (testamentary capacity);
• want of knowledge and approval;
• undue influence;
• fraudulent / forged wills;
• improperly executed wills;
• lost or destroyed wills;
• negligently prepared wills;
• interpretation, construction and rectification of wills; and
• proprietary estoppel and constructive trust claims.

The quality of will writing services can vary considerably, meaning errors in wills are not uncommon. In such cases, it can be possible to have the will ‘rectified’ to ensure it meets the testator’s original intentions.

Our contentious probate solicitors can assist with:

• checking a will for potential errors or ambiguity;
• negotiating with executors and beneficiaries to clarify the deceased’s intentions; and
• court applications to rectify a will.

If a person does not benefit under a will or in intestacy, it is possible to bring a claim under this legislation for reasonable financial provision.

The Inheritance (Provision for Family and Dependants) Act 1975 – also known as the ‘Inheritance Act’ or ‘1975 Act’ – allows certain categories of people to make a claim against an estate if the deceased’s will or intestacy does not make reasonable provision for them. We have experience in bringing and defending Inheritance Act claims and, regardless of which side we are on, we will work to achieve an agreed resolution, wherever possible.

Where there are concerns over the way an estate is being administered, it is important that these are raised in the right way and, if necessary, that the executor or estate administrator can be replaced.

Our team can assist with:

• probate that is taking too long;
• executors charging unreasonable expenses to the estate;
• estate assets being sold at below market value; and
• removing and replacing executors and estate administrators.

Financial transactions and gifts the deceased made before death can sometimes be questioned during estate administration. It is important that these matters are resolved as soon as possible to protect the value of the estate.

Our contentious probate solicitors can assist with:

• determining if the deceased had the mental capacity to make financial decisions;
• concerns about undue influence over the deceased;
• returning wrongly gifted assets to the estate; and
• financial claims against those who have benefited from wrongly gifted assets or questionable financial transactions.

Where property included in an estate is jointly owned by another party, it can cause complications for those administering the estate and the beneficiaries. These issues must be cleared up swiftly to prevent probate delays and any impact on the estate’s value.

Our inheritance disputes lawyers can assist with:

• investigating the legal ownership of property;
• negotiating with co-owners over how property should be dealt with; and
• selling co-owned properties.

If someone makes a promise (the promisor) to another person (the promisee) relating to property or land, and the promisor breaks that promise even though the promisee has acted upon it and suffered a loss as a result, a claim can be brought for that promise to be fulfilled.

Often, it is a case of one person’s word against another and our experienced team can help guide you through the process and advise on the merits of the claim.  We have considerable experience in acting for farming families where this issue regularly arises.

We work closely with our private wealth colleagues and external advisors, such as off-shore lawyers, to achieve a seamless and complete offering.

Our contentious probate solicitors can advise on:

• bringing / defending claims to remove or replace trustees;
• bringing / defending breach of trust actions;
• seeking the court’s approval of trustees’ actions (Blessings and Beddoe applications);
• applications to set aside transfers into / out of trust;
• dealing with beneficiaries’ rights to information;
• claims as to ownership of property (TLATA 1996);
• obtaining clarity as to the meaning of the words of a trust;
• applications to vary the terms of the trust under the Variations of Trusts Act 1958;
• representing minors and unborn beneficiaries; and
• trusts and divorce.

Charities require specialist advice. We work closely with our Charities team to assist charities in achieving positive results. We aim to resolve disputes out of court where possible, all the time being mindful of the compliance issues that charities face, as well as their reputational concerns.

Our contentious probate solicitors can advise on:

• applications to challenge the validity of a will;
• applications under the cy-prės doctrine for a charitable gift to pass in line with the settlor’s intentions; and
• investigations into dubious lifetime gifts which have depleted the estate.

Farms and landed estates are a common source of inheritance and trust disputes and these can be particularly complicated to resolve. This is an area in which our team have extensive specialist experience.

We can assist with advice on:

• inheritance disputes involving family farms and landed estates;
• trusts disputes for farming families and landowners; and
• Inheritance Act claims for family members not involved in the business and not catered for in the will or under the rules of intestacy;

Our team can assist whether you are the applicant or the recipient of a notice of an application.

We can assist with advice on:

• allegations of financial abuse during a person’s lifetime;
• applications to remove an attorney;
• objections to the appointment of a deputy;
• seeking approval of lifetime gifts made by an attorney;
• applications to the court for one-off decisions; and
• challenging an application for a statutory will (a will made and approved by the court after someone has lost capacity)

Our private wealth colleagues can assist in the less contentious matters such as applications to appoint a deputy and applications to make a statutory will.

If errors were made in the way a will was drafted, it may be necessary to make a professional negligence claim against the person who prepared the will to offset any losses that have resulted.

Our team can help with:

• advice on whether will negligence may have occurred;
• making a professional negligence claim against a solicitor or will writer; and
• rectifying the will to reflect the deceased’s wishes.

An estate is insolvent if the total value of its assets is insufficient to pay its debts and liabilities. Where an estate is insolvent or is likely to become insolvent, Personal Representatives should act quickly to obtain advice on how to administer the estate for the benefit of the estate’s creditors until the debts and liabilities are paid, rather than for the benefit of the estate’s beneficiaries.  Personal Representatives who distribute assets to beneficiaries without having paid all of the estate’s debts and liabilities could be personally liable for devastavit (wasting estate assets).  We work closely with our Restructuring and Insolvency team to advise Personal Representatives, Creditors and Beneficiaries on insolvent estates.

Our contentious probate solicitors can assist with advice on:

• the prospect of an estate being found to be insolvent;
• the order of payment of estate debts and liabilities;
• administering an insolvent estate out of court by the Personal Representative and otherwise than in bankruptcy;
• obtaining the court’s directions pursuant to CPR Part 64 and administering the insolvent estate accordingly;
• obtaining an Insolvency Administration Order pursuant to section 421 of the Insolvency Act 1986 for the insolvent estate to be administered by a trustee in bankruptcy;
• bringing and defending claims against Personal Representatives for devastavit in relation to insolvent estates; and
• applying to the court to ratify dispositions of property under section 284 of the Insolvency Act 1986.