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Obtaining Advice

Following bereavement, emotions run high and regrettably tensions can arise between the deceased’s family and friends. While the deceased is usually entitled to leave their estate to whom they wish, this can be challenged if the will is invalid or proper provision has not been left for dependents.

It is important to obtain advice early on. The right to challenge a will or intestacy can be lost if there is any unreasonable delay. Prompt action, such as lodging a caveat at the Probate Court, can often prevent the distribution of the deceased’s assets pending the resolution of any dispute.

Whether you are an executor of an estate, a beneficiary under a will or a dependent who has been passed over, we can assist you in bringing and defending probate claims and seeking alternative methods to resolve any dispute.


Challenging the Validity of a Will

There are a number of grounds which entitle a person with sufficient interest to challenge part or the whole of a will, some of which are set out below.

Want of due execution

For a Will to be valid, it must usually be in writing and signed in the presence of 2 witnesses who also sign.

Capacity

The maker of the will must have mental capacity to sign the will. He must understand what he is doing, the extent of property being given away and appreciate the claims he ought to give effect to.

There is a presumption of sanity and persuasive evidence of lack of capacity will be required where the will was made before an experienced solicitor. Claims based on capacity largely turn on the strength of medical evidence.

Undue Influence, Sham or Fraud

Such allegations can often be hard to prove. A person can exert a bad influence on the will writer without this being sufficient to amount to undue influence.

The court will likely take greater interest in a party who prepares a will under which they receive a benefit.

Property Rights and Promises

Others, such as former cohabitees or business partners, may have an interest in property that is not registered in their name. Though not a claim against the validity of the will, any property rights that existed prior to death will usually continue and can be enforced.

Similarly the court will in limited circumstances enforce promises made by the deceased regarding their property or assets where such promises have been relied upon and it is inequitable for the estate to renege on this.

Mutual Wills

Mutual wills are wills executed by 2 individuals, usually in a relationship, disposing of their property in an identical fashion.

Such wills are rare as these may prevent the surviving individual from changing their will contrary to the terms of the previous mutual will.

Revocation

A Will is usually revoked by marriage, divorce, destruction of the will or by a later will being made.


Inadequate Provision for Family and Dependents

Inheritance Act Claims

The Inheritance (Provision for Family and Dependants) Act 1975 provides for certain family and dependents to make a claim against an estate where reasonable financial provision has not been provided either by the deceased’s will or on intestacy. We are experienced in bringing and defending Inheritance Act claims and can advise you on the potential pitfalls and cost implications.

Who can make a claim?

A claim can potentially be made by the deceased’s:

  • Spouse / civil partner
  • Partner living with the deceased for at least 2 years
  • Divorced spouse (in limited circumstances)
  • Child
  • Person treated as a child of the deceased
  • Person being ‘maintained’ by the deceased immediately prior to his death

What can be claimed

If a claim is established the court has the power to make a wide range of orders against the estate such as a lump sum , trusts or periodic payments. A successful claimant is entitled from the estate to either:

Such reasonable financial provision as is necessary for maintenance; or
Spouse / Civil Partner - reasonable financial provision

Time Limit

There is a 6 month time limit to bring an Inheritance Act claim from the date of grant of probate. This can be extended in exceptional circumstances.

Factors taken into Account

If no reasonable financial provision has been made the court will consider the following factors in deciding how to exercise their powers:

  • Financial resources and needs of claimants and other beneficiaries
  • Deceased’s moral obligation
  • Size and nature of estate
  • Capacity of claimant
  • Claimant’s conduct
  • Duration of marriage
  • Education requirements


Glossary

  1. Administrator Person(s) appointed by the court to administer the deceased’s assets upon an intestacy.
  2. Beneficiary Person entitled under will or intestacy to money or other asset from the deceased
  3. Caveat Formal request to the Probate court not to issue a grant of probate while a potential dispute remains outstanding
  4. Executor Person(s) appointed by a will to administer the deceased’s assets
  5. Grant of Probate The authority from the Probate Court confirming the executors have the authority to act on the will
  6. Intestacy An intestacy arises where the deceased dies without leaving a will. The right to administer their estate and division of the deceased’s assets and property are dealt with in accordance with a formula set down in law.

Court of Protection Solicitors

The Court of Protection is responsible for making decisions for those who lack mental capacity to do so. The majority of their work is for those that are unable to manage their finances.

We can help you with:

  • the process of applying for a deputy to be appointed
  • acting as a professional deputy
  • various problems and issues that arise for deputies whilst carrying out their duties
  • statutory wills

Contested Wills & Trusts Solicitors

Following bereavement, emotions may run high and regrettably tensions can arise between the deceased’s family and friends.

While the deceased is usually entitled to leave their estate to whom they wish, this can be challenged if the will is invalid or proper provision has not been left for dependents. We are able to assist you with a broad range of disputes in this area of the law.

It is important to obtain advice early on.  The right to challenge a will or intestacy can be lost if there is any unreasonable delay. Prompt action, such as lodging a caveat at the Probate Court, can often prevent the distribution of the deceased's assets pending the resolution of any dispute. 

Whether you are an executor of an estate, a beneficiary under a will or a dependent who has been passed over, we can assist you in bringing and defending probate claims and seeking alternative methods to resolve any dispute. 

We also advise on:

  • claims against executors/administrators
  • requests for information by beneficiaries
  • Breach of Trust claims

Further Information

Contested Wills and Provision for Dependents: View Online pdf Download PDF

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a document which allows you to appoint one or more individuals as your attorneys to deal with your affairs in the event that you are no longer able to make such decisions for yourself or, in the case of your finances, where you decide you would like someone to help you with the on-going management of your affairs.

Property and Financial Affairs LPA

A Property and Financial Affairs LPA gives you the opportunity to retain control of your finances as it is you who makes the decision about who should be appointed to deal with such matters.  The powers you give to your attorney can be used at your discretion, such as if you are unable to physically act yourself or if you would like someone to help you in dealing with your affairs as you get older.  The powers will also remain in force if you are no longer mentally capable of dealing with these matters for yourself and can no longer give your instructions about how to act.

Health and Welfare LPA

A Health and Welfare LPA allows you to appoint someone who you trust to make decisions about your medical care and physical well-being limited to circumstances when you are no longer able to speak up for yourself, so you know who will be making these decisions for you when you no longer can.  It is also possible to give your attorney in a Health and Welfare LPA the authority to give or refuse consent to life-sustaining treatment on your behalf.

When and Why Should I Make a LPA?

LPAs can only be prepared while you are well enough to understand the documents that you are signing and therefore need to be thought about carefully, ideally long before they are actually needed.

If you do not put an LPA in place and you are no longer able to deal with your affairs, an application has to be made to the Court of Protection to sort out your affairs.  This is a costly and time-consuming exercise and could lead potentially to someone being appointed to manage your affairs who you would not want to have such control over your assets.

Having an LPA in place is like having an insurance policy - hopefully, you will never need to use it but you can rest assured that if you do need help in the future, as a result of accident, illness or old age, everything is in place to ensure that you will be looked after without delay or unnecessary additional stress.

Refunds on Lasting Power of Atttorney Registration Fees

With effect from 1 February 2018, the Ministry of Justice have announced that it is possible to claim a refund for the Lasting Power of Attorney registration fee if you registered a Lasting Power of Attorney between 1 April 2013 and 31 March 2017. Interest may also be paid on the amount owed to you and this applies to both Lasting Power of Attorney or Enduring Power of Attorney applications made during the relevant timeframe.

The reason for this refund is because the operating costs of the Office of the Public Guardian reduced as more people applied to register a Power of Attorney and the process became more efficient, but the application fee charged was not reduced in line with this until 1 April 2017.

The amount you can claim back will depend on the date of the application but is typically between £45 and £54.

In order to make a claim, you must either be the person who made the Power of Attorney (the donor) or an attorney appointed in the Power of Attorney.

There are two ways to make a claim:

  1. You can claim online in a very quick and simple process. To do this, you will need to visit https://www.gov.uk/power-of-attorney-refund and click “claim a refund online”.
  2. Call the refunds helpline on 0300 456 0300 and choose option 6. If the donor has already passed away, the claim has to be made by phone.

Once a claim has been made, it can take up to 12 weeks to be processed but once approved, the refund will be made direct to the donor’s bank account.

Probate Solicitors

When someone dies, their money, property and possessions have to be dealt with.

Any debts and tax due must be paid and then the remaining assets distributed to the beneficiaries of the Will or distributed in accordance with the intestacy rules. This process is commonly referred to as Probate. It can be complicated depending on the size and make-up of the deceased’s estate.

What to do When Someone Dies

At a time when you may be grieving we can provide a complete probate service to carry out all the work required or we can provide a helping hand to deal with the more difficult elements if you wish to undertake probate yourself.

Our probate solicitors can carry out the complex process of how to deal with a death, and dealing with the estate of someone who has died, provide practical guidance to an Executor of a Will or next of kin regarding determining the size of an Estate for Probate and advise on the payment of Inheritance Tax.

Within a few days after a death, someone needs to:

  • make sure that the home and possessions of the person who had died are secure
  • register the death
  • start arranging the funeral

What to Do When Someone Dies - Helpful Information

Below is a downloadable pdf which explains how to deal with these matters in practice and covers the following useful points:

  • Who does what?
  • What are the priorities?
  • Security and insurance for the property of the person who has died
  • Registering the death
  • Is there a will?
  • Arranging the funeral
  • Telling people about the death
  • The next step: gathering information
  • Checklists

Further Information

What to do if someone dies: View Online pdf Download PDF

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