In many cases, the family of someone who dies do not know what provisions have been made by that person in his will until the will has been found some time afterwards. It is not uncommon for the family to be surprised and even disappointed by how the estate is to be inherited.
There are many different reasons for this; sometimes the will might cut out family members who should have inherited or the will may have been executed at a peculiar time when the testator was ill. In other cases there may just be problems with understanding the will or it may later come to light that the person appointed as executor is not able to perform that demanding task.
In these cases and others, someone who has lost out as a result can apply to have the will set aside (meaning it will not be valid) or can get other orders from the court to correct the problem. These cases are known as contentious probate, and there are many potential solutions for the problems that can arise.
Healys acts for claimants and defendants in these cases, giving us a detailed understanding of both sides in these often complex disputes. It also means that we understand that these cases can be very difficult for everyone involved – the problems come up when people are already suffering from the loss of a loved one. Although it is ultimately possible to go to court for many of the reasons outlined below, we always explore ways of settling cases as quickly as possible to avoid distress and cost at this difficult time.
The areas where we can assist include:
- Drafting errors and changing wills: where the will does not say what the testator meant to say or there are other reasons to try to change a will
- Execution: where the formalities for making a will have not been carried out properly
- Capacity: where the testator made the will when he lacked the mental ability to do so. This usually happens when an elderly person was suffering from dementia, but may apply wherever someone has health problems that affect their ability to understand what they are doing
- Undue Influence: cases where the will did not reflect what the testator really wanted to happen
- Failing to make provision for someone: where someone is cut out of a will completely, or has a much smaller inheritance than expected
- What is in the estate: addressing questions about whether property that was given away by the testator should be in the estate
- Applying for the court’s help: seeking a court order when the executors or others need help on how to interpret the will or run the estate
- Estate mismanagement: dealing with executors and trustees who have not handled an estate or trust properly
- Other disputes: there are many other problems that can arise where we can help you
In most cases where a will is to be disputed or some other claim made against the estate, the first step is usually to make a formal request to the solicitor who prepared the will to find out the circumstances when the instructions for the will were taken and when the will was executed. This step often gives information that allows a detailed assessment of whether a claim should be pursued.
Probate law has developed over many hundreds of years, and some of the words used by lawyers in this area can be very confusing; Latin and old English words that have fallen out of use in everyday life are often still used in these cases. Even more confusingly, some words that might seem to be normal English words have special meanings in probate law. We have produced a glossary of terms commonly used in probate cases.
To speak to one of our specialist Contentious Probate litigators please contact Ben Parr-Ferris on 020 7822 4105 or email firstname.lastname@example.org
- Bringing a claim against a firm of solicitors on behalf of an intended beneficiary of a will. The solicitor had prepared the will negligently so that the claimants inherited nothing even though the testator had intended them to have a substantial bequest forming the majority of the value of the estate. A substantial payout was made by the solicitors’ insurers before the case went to trial
- Representing a testator’s family member to arrange the removal of the named executor of a will based on his unsuitability to act in that position. The named executor had been involved in a protracted dispute with the beneficiaries prior to the testator’s death, and had previously been found to be dishonest
- Glanville -v- Glanville  EWHC 1271 (Ch) Successfully defended a claim brought by the executors of an estate. The executors alleged that a gift of property made during the testator’s lifetime was made following undue influence exerted by his wife. The court found that there had been no undue influence
- Advising a client whose parents had disinherited him because of untrue statements made about him to his parents by his siblings
- Defending a claim brought by a beneficiary of a will who claimed that the testator had no capacity and did not know and approve the contents of her last will. The claim in the High Court’s Chancery Division arose from a bitter rift in the family, and was very hotly contested with neither side wanting to give ground to the other. Despite this, the claim was settled at mediation shortly before trial
- Application to the court for the sale of a property held in a will trust to allow one of the beneficiaries to access his share of the sale proceeds. The court ordered a sale and made a costs order against the beneficiary who had opposed the sale
- Advising an executor in respect of an asset that had been deliberately transferred by the testatrix before her death to prevent it falling into the hands of her husband under the will. The testatrix had not wanted to reveal to her husband that he would not inherit the property. Following correspondence with the husband’s solicitors his threatened claim for the property to be transferred to him was not pursued
- Advising a litigant on the merits of an appeal following a trial (in which we had not acted) where the client had failed to prove that either of the testator’s last two wills should be propounded. Our analysis showed that the trial judge had been wrong on some points of law, but that an appeal was not worth bringing because the only will that could stand and would have benefitted the client was unenforceable for reasons that had not been identified earlier
- Acting for an executor and beneficiary in proceedings where the testator’s brother had alleged that the will had not been executed properly because the attesting witnesses were not present and together when the will was executed by the testator. Extensive witness evidence was obtained to rebut the allegations, and an application made to the court to prove the will. The claim of improper execution was withdrawn before the proceedings reached trial and the matter settled
- Representing the wife and family of a testator where the family discovered after the testator’s death that most of the testator’s property had been fraudulently transferred to another family member. Included proceedings before the Adjudicator to HM Land Registry to protect the property from disposal before applying to the court to recover the property for the estate.
- Advising an executor where family members who had been bequeathed a share of a property had taken up occupation of it and refused to leave