Inheritance and Will Disputes
We understand what a difficult time it can be for any family suffering bereavement and we also appreciate how this distress can increase when there is disagreement over the deceased’s estate.
Unfortunately, with family relationships becoming increasingly more complicated, disputes over inheritance are on the rise. Whether it’s you or another party challenging the will or the distribution of the estate, you need advice and support from legal advisers with real experience in this often complex area of law.
Napthens is one of only a few firms in the North West with specialist expertise in inheritance and will disputes. The firm is also recognised by the Association of Contentious Trust and Probate Specialists as having the necessary expertise in this area of law.
With the Napthens’ team on your side, you can be assured of a supportive and sensitive approach, aligned with a strong technical ability that will get straight to the heart of the matter – providing the clarity you need to decide the best course of action at this difficult time.
Our team acts for beneficiaries, dependents, executors and estate administrators and can advise on any aspect of an inheritance or will dispute, including those arising from:
Inheritance Act Claims
The Inheritance (Provision for Family and Dependants) Act 1975 provides for certain individuals to be able to bring claims against the Estate for reasonable financial provision, where the Estate does not provide for their reasonable financial needs. This can include those affected because there is no will in place. Any claim must be made within six month of the date of the Grant of Probate.
Claimants can include:
- The surviving husband, wife or civil partner
- A former husband, wife or civil partner who has not remarried or formed a new civil partnership
- A child of the deceased
- Someone treated by the deceased as a child of their family
- A cohabitee who had lived with the deceased for at least the 2 years prior to their death
- Anyone entirely or partly maintained by the deceased immediately before death
Validity of a will
If the will has not been executed correctly, it could be invalid and open to challenge. To be valid a will must meet certain criteria. This includes that the person making the will must be mentally and legally fit to do so. It must be voluntary, must be in writing and signed by the person making the will in the presence of two witnesses who must also sign.
Testamentary capacity and undue influence
A person providing instructions and executing a will must have the necessary testamentary capacity to do so. They must also be capable of knowing and approving the contents of a will – this means establishing that the person (at the time of writing their will) is of sound mind and capable of understanding:
- That they are making a will
- Broadly, what assets are to be distributed by the will
- The effect of making the will i.e. who will benefit/be excluded by the will, being aware of those they might be morally expected to provide for
If the person did not have the necessary testamentary capacity or did not know or approve of the contents of the will, then the will may be set aside as invalid. It can be difficult to prove that someone was not of sound mind and any challenge to the validity of a will using this reason will of course require documentary evidence for example, witness statements, medical reports etc.
A will may also be set aside if the person who made and executed the will did so under the undue influence of another. The allegation of undue influence is a serious claim to bring and there must be good evidence to support such a claim.
Disputes between, for or against Executors or Trustees
The executor owes a duty to the Estate to deal with the affairs of the deceased by collecting in the assets and discharging liabilities for administration of the estate. The administration of any Estate can be a complex and lengthy process. It is frequently made more complex if those involved are unwilling to comply with their duty as executor or trustee.
A solicitor appointed as an executor will hold both a professional duty as well as a duty as an executor or trustee, whereas a non professional executor or trustee owes no professional duty to administer the estate.
A trustee will be appointed where something is left in the will to an individual who is unable at the time to inherit e.g. a child. The trustee in this case will take care of the assets until the beneficiary is able to inherit.
Executors and trustees can be solicitors but are often friends or family, who in turn can also be beneficiaries. Inevitably there are times when executors and trustees make mistakes. These can range from errors around the valuation of property, not distributing any assets quickly enough through to a more serious breach of trust and misuse of status for personal gain.
Wills are personal, confidential documents and often written many years before the writer dies. Inevitably this means that at the time of death, a will can be difficult to find – and in some cases it simply can’t be traced.
If a will cannot be found, it is presumed to have been destroyed. It is sometimes possible to prove that the will was not in fact revoked, by presenting other forms of evidence to suggest the contrary.
Whether making or defending a claim in relation to probate disputes, the legal system is notoriously complex. It is therefore crucial to instruct an appropriately qualified lawyer who specialises in this particular area of litigation to represent you. You can lose your case (even where you should have succeeded) merely by you or your representative misunderstanding the complex rules and processes associated with probate disputes.
Please contact Nicola Turner from our Napthens’ Inheritance and Will Disputes team for an initial confidential discussion about your case.