Hugh James

Contentious Probate

 

Contentious Probate

Wills and the law of intestacy do not always produce a fair result; reasonable financial provision is not always made for everyone entitled to expect it. All is not necessarily lost as the law gives certain people the opportunity of claiming against an estate even if there is no provision for them under the Will or the Intestacy Rules.

You may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you fall into one of the specified categories of permitted applicants. It may be necessary to show that you were dependent on the deceased at the time of death, or living with him or her for two years immediately before the death. If your application is successful, the Court can make a variety of orders which effectively rewrite the Will or the Intestacy Rules to ensure that reasonable financial provision is made for you.

Time limits are critical in family provision applications; if an application is not made within the specified time, you may lose the right to pursue what would otherwise have been a perfectly good claim.  If you think you may have a claim, you should obtain specialist legal advice right away.

In addition, there may be circumstances in which disputes may arise over Wills that have been created or over the way in which the estate of the deceased is being administered. For example there may be doubt as to whether the deceased had testamentary capacity to make a Will or as to whether undue influence has been used by anyone to bring about the Will made by the deceased.

There may also be instances in which the meaning of clauses in the Will can be open to interpretation thereby in some cases necessitating the rectification or construction of clauses in the Wills by the court, or bringing claims against solicitors for the negligent drafting of Wills.

Furthermore, Executors and Trustees may need to be brought to account for the way in which they have administered the estate or trust, and the loss occasioned to the estate or trust as a result thereof. In extreme cases it may be necessary to apply to the court for their removal from office. Conversely, Executors and Trustees may need protection from beneficiaries, including the ability to seek directions from the court in particular situations.

It is also common to find trust arguments over property arising in the context of estates, to include express, constructive and resulting trust arguments, and arguments based on proprietary estoppel. This is a particularly specialized area of the law of contentious probate that the team is well equipped to handle.

Our Probate Litigation Team

In short, our probate litigation team is known for its technical expertise, high quality advice and commitment to every sector including the charity sector. The team takes a firm but fair approach to claims, recognising the special position of charities in the eyes of the public and the sensitive nature of what are essentially family disputes, and working to resolve disputes without the expense of court action as far as possible, to include resolution by mediation.

The team undertakes a wide range of contentious probate work, for both charities and individuals and regularly deals with extremely high value estates and claims. The cases frequently involve complex will or trust disputes and problem estates where charities are major beneficiaries. The team’s expertise includes:

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