Other disputes that might arise in wills and probate

6th June 2015 by

Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested. 

As well as these common claims, there are a large number of less common issues that can arise and that Healys can assist with.  Some examples appear below.

  1. Mutual wills. It is possible for two people (usually husband and wife) to make wills that are in similar terms and are made on the agreement that once one person dies the other cannot later change the will. An example of where this might happen is where divorced people remarry, and they want to be sure that property will go to the children of the first marriage after both parties to the second marriage have passed away. If after one party has passed away, the second makes a new will, ignoring the agreement, the second will will not be valid, and the beneficiaries of the first will can bring proceedings for that will to be admitted to probate.  Similarly if the property that should have passed under the mutual will has been given away or sold, proceedings can be taken to recover the property or its value from the estate. (Note that mutual wills are not the same as mirror wills, which are simply wills made by two people in similar terms.)
  2. Non validity of wills because of subsequent marriage or civil partnership. If you get married after having made a will, the will is revoked by the marriage unless it has been made in contemplation that the marriage will happen shortly.  If property has been distributed under such a will and you would otherwise stand to inherit, you will have a claim for recovery of the estate.
  3. Questions as to whether a will has been revoked. Revocation can take place in writing (usually but not always by executing another will), or by the testator destroying the will as long as he intended to revoke it by doing so.  Disputes sometimes arise over whether a will that has been torn up or burnt (for example) was intended to be revoked.
  4. Occasionally a will might say that property has been left to someone but on the understanding that it is to be given to someone else who is not named. On other occasions a will can say that property has been left to someone but makes no reference to the fact that that person knows he is supposed to hold the property for someone else. These are known as secret or half-secret trusts.  Secret trusts are enforceable through the courts, although there are often problems with proving that the trust exists.
  5. Wills made by members of the armed forces and merchant navy that do not comply with the usual requirements for execution. Members of the armed forces who are on active service can make wills without going through the formalities, and can even make spoken wills. The same applies to mariners at sea.  These wills are just as valid as written wills and may take precedence over other wills that have been made.

If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email ben.parr-ferris@healys.com.