FAQs - Disputed Wills, Trusts and Estates

Here are some frequently asked questions for Disputed Wills, Trusts and Estates, click on the questions to view the answers: 

Questions
1.  What is probate?
2.  What is contentious probate?
3.  What is ACTAPS?
4.  What is a personal representative?
5.  Can a personal representative be removed?
6.  What happens if there is no will?
7.  How do I obtain a copy of the will?
8.  How can I prevent a Grant of Probate being issued?
9.  How can I find out when a Grant of Probate/Grant of Administration has been granted?
10.  On what grounds can I challenge a will?
11.  What should I do if I want to contest a will?
12.  Will I automatically inherit my partner's estate as his/her "common law" husband or wife if he/she does not make a will?
13.  What can I do if I have been left out of a will or I am unhappy about my share?
14.  Someone who was supporting me has died. What can I do?
15.  My mother/father has not provided for me in their will. What can I do?
16.  I think the testator was pressured into making his/her will. Does this mean its invalid?
17.  I think the will was forged. What can I do?
18.  I think there is a more recent will to the one that is going to be admitted to probate. What can I do?
19.  Does marriage revoke a will?
20.  I am a beneficiary of an estate and I am not happy with the way in which the personal representatives are dealing with the estate. Is there anything I can do?
21.  What information regarding the estate am I entitled to as a beneficiary?
22.  Will I have to go to court and who pays the costs of legal proceedings?
23.  Are there time limits for bringing a claim?
24.  What is Alternative Dispute Resolution (ADR)?
25.  The will doesn’t give me an inheritance that I was promised by the deceased. Is there anything I can do?
26.  What is a Trust?
27.  What are the powers and duties of a Trustee?
28.  Can a Trustee be removed?
29.  Who can make decisions for someone that lacks mental capacity?
30.  What is the Court of Protection?
31.  Who can become a Court of Protection Deputy?
32.  What can I do if I think an attorney/deputy is abusing their position of trust?
33.  What can I do if a person that lacks mental capacity doesn’t have a Will?
34.  How much will it cost?

1.  What is probate?

Probate is the legal and financial process of dealing with a deceased person's property, money and other assets in England or Wales. Probate is carried out by the personal representative once a grant of probate or letters of administration has been obtained.

2.  What is contentious probate?

Contentious probate is any dispute relating to the administration of a deceased's person's estate.

3.  What is ACTAPS?

ACTAPS is the Association of Contentious Trust and Probate Specialists. ACTAPS was established in 1997 as a forum for lawyers specialising in contentious trust and probate law. ACTAPS members have extensive experience in the area and must undertake a comprehensive qualification course before they can become a member - both Robert Horsey and Kerry Morgan-Gould (solicitors in our Disputed Wills, Trusts and Estates Team) are members of ACTAPS and Rebecca Milton (a trainee Legal Executive in our Disputed Wills, Trusts and Estates Team) is a student member.

ACTAPS has also produced a code of conduct, the "ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes" (the ACTAPS Code), which provides good practice guidance for lawyers dealing with contentious probate cases and is designed to promote early resolution of such disputes.

Please click here to download the ACTAPS Code.

4.  What is a personal representative?

A personal representative is a person responsible for dealing with the administration of a deceased person's estate.

Where the personal representative has been named in a will, their authority automatically arises on death under the will, and they will be either an executor (if male) or an executrix (if female).

Where the deceased died intestate (ie without a will), the personal representative is appointed on a grant of administration being issued at the Probate Registry. They will be either an administrator (if male) or an administratrix (if female). There is a specific order of entitlement of people that can apply to be a personal representative on an intestacy.

5.  Can a personal representative be removed?

A personal representative can potentially be removed if there is good reason to do so as long as removing him/her will benefit the estate. For example if:

  • The personal representative is of "bad character" (e.g. he/she has been convicted of a crime);
  • The personal representative is incapable of performing their duties by virtue of a physical or mental disability;
  • The personal representative has carried out serious misconduct (for example stealing funds from the estate);
  • The personal representative is unsuitable for the position (for example there is a conflict of interest as the personal representative has a claim against the estate).

Personal representatives cannot retire once they have accepted their appointment except by Court order.

For more information, please see Executor/Administrator Disputes.

6.  What happens if there is no will?

Where the deceased died without a will, they have died "intestate". This means that their estate is administered in accordance with the rules of intestacy.

Details of the intestacy rules can be found here - The Intestacy Rules.

7.  How do I obtain a copy of the will?

While the person is still alive, their will is strictly confidential and only they can give a copy to you. Once that person dies, their personal representatives stand in their shoes. It is then for the personal representative to decide whether to provide a copy to you.

Once a grant of probate has been issued the will becomes a public document and anyone can obtain a copy by lodging the prescribed form at the Probate Registry (there is currently a fee of £10.00). We offer a fixed fee service for applying for a copy of the will and grant at the Probate Registry. If you would like to instruct us in this regard, please click here to complete our instruction form and a member of our Disputed Wills, Trusts and Estates team will be in contact with you (alternatively, you can instruct us by telephone on 01884 203 018 or FREEPHONE 0800 0931 336).

8.  How can I prevent a Grant of Probate being issued?

You can prevent either a grant of probate or grant of administration by lodging a caveat at the Probate Registry. For more information, see Caveats, warnings and appearances.

We offer a fixed fee service for preparing and entering a caveat at the Probate Registry. If you would like to instruct us in this regard, please click here to complete our instruction form and a member of our Disputed Wills, Trusts and Estates team will be in contact with you shortly (alternatively, you can instruct us by telephone on 01884 203 018 or FREEPHONE 0800 0931 336).

9.  How can I find out when a Grant of Probate/Grant of Administration has been granted?

You can find out when a Grant of Probate or Grant of Administration (also known as a Grant of Letters of Administration) has been obtained by lodging a "standing search" at the Probate Registry. The standing search stays in place for 6 months and can be renewed on expiry.

We offer a fixed fee service for applying for a standing search at the Probate Registry. If you would like to instruct us in this regard, please click here to complete our instruction form and a member of our Disputed Wills, Trusts and Estates team will be in contact with you shortly (alternatively, you can instruct us by telephone on 01884 203 018 or FREEPHONE 0800 0931 336).

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10.  On what grounds can I challenge a will?

There are a number of grounds upon which the validity of a will can be challenged. They include:

  • The will does not comply with the formal requirements of s.9 of the Wills Act 1837;
  • The testator did not have mental capacity at the time of making the will (known as testamentary capacity);
  • The testator did not know or approve of the contents of the will;
  • The person did not make the will voluntarily (for example, the will was forged or the testator was coerced into making the will).

For more information, see Challenges to Wills.

11.  What should I do if I want to contest a will?

If you wish to challenge a will or think you may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you should seek legal advice as soon as possible.

Timing can be critical in probate disputes and legal advice should be sought without delay. For example, claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be made within six months of the date of the grant of administration. Urgent action may also be required to protect estate funds and assets while your claim is being investigated.

Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

12.  Will I automatically inherit my partner's estate as his/her "common law" husband or wife if he/she does not make a will?

There is no legal status in England and Wales of a "common law" husband and wife. If you have not made a will, on your death your estate will pass in accordance with the intestacy rules, irrespective of whether you have children with your partner or the length of time you have lived together.

While there are plans for reform of the law in England and Wales, in the form of the Cohabitation Rights Bill, in the meantime, the recommendation must be to ensure you have a valid will to ensure your estate passes as you wish.

13.  What can I do if I have been left out of a will or I am unhappy about my share?

Depending on your relationship with the deceased and your financial circumstances, you may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act).

For more information about Inheritance Act claims, see Claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

If you are considering a claim under the Inheritance Act, it is essential that you seek legal advice from a specialist solicitor as soon as possible - Inheritance Act claims must be brought within 6 months of the grant of representation to the estate. If you are already out of time please do still contact us as we may still be able to help. Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

You might also want to look at whether there is any possibility of making a challenge to the validity of the will. Also, if the will does not reflect a promise made by the deceased before his death (such as a promise to transfer land or property) you may have a proprietary estoppel claim.

14.  Someone who was supporting me has died. What can I do?

Depending on your relationship with the deceased and your financial circumstances you may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act).

If you are considering a claim under the Inheritance Act, it is essential that you seek legal advice from a specialist solicitor as soon as possible - Inheritance Act claims must be brought within 6 months of the grant of representation to the estate. If you are already out of time please do still contact us as we may still be able to help. Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

15.  My mother/father has not provided for me in their will. What can I do?

Depending on your financial circumstances you may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act).

If you are considering a claim under the Inheritance Act, it is essential that you seek legal advice from a specialist solicitor as soon as possible - Inheritance Act claims must be brought within 6 months of the grant of representation to the estate. If you are already out of time please do still contact us as we may still be able to help. Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

16.  I think the testator was pressured into making his/her will. Does this mean its invalid?

A person must be free to make their will voluntarily. If it is found that they were forced into signing a will or undue pressure was put on them, the will is invalid.

For more information, see Challenges to Wills.

17.  I think the will was forged. What can I do?

If you think a will has been forged, you should seek specialist legal advice as soon as possible. Urgent steps will need to be taken to prevent a grant of probate being obtained and to preserve the estate funds and assets. Extensive enquiries will need to be made into the preparation of the will, which will often include instructing a handwriting expert. Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

For more information, see Fraudulent wills.

18.  I think there is a more recent will to the one that is going to be admitted to probate. What can I do?

If you think there is a more recent will to the one which will be admitted to probate, you should lodge a caveat with the Probate Registry as a matter of urgency to prevent the grant of probate being obtained for the earlier will.

For more information, see Caveats, warnings and appearances.

We offer a fixed fee service for preparing and sending the caveat to the Probate Registry. If you would like to instruct us in this regard, please click here to complete our instruction form and a member of our Disputed Wills, Trusts and Estates team will be in contact with you shortly (alternatively, you can instruct us by telephone on 01884 203 018 or FREEPHONE 0800 0931 336).

19.  Does marriage revoke a will?

When you marry, any existing will is automatically revoked (cancelled) and is no longer valid. If you do not make a new one, then when you die your estate will pass in accordance with the rules of intestacy.

Details of the intestacy rules can be found here - The Intestacy Rules.

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20.  I am a beneficiary of an estate and I am not happy with the way in which the personal representatives are dealing with the estate. Is there anything I can do?

The personal representatives have a duty to collect in the assets in the estate and administer them in accordance with the terms of the will or the intestacy. Their duty is to the beneficiaries of the estate - in particular the residuary beneficiaries. They also have a duty to account to the beneficiaries for the estate assets.

If the personal representatives fail in their duties then that does give the beneficiaries a right to bring a claim against them for any losses caused as a result. Alternatively they may want to take action to force them to provide an account, or even to seek their removal as executors or administrators.

For more information see Executor/Administrator Disputes.

21.  What information regarding the estate am I entitled to as a beneficiary?

As beneficiary you are entitled to certain information regarding the estate, including sufficient estate accounts. For more information, see What Rights does a Beneficiary have to Trust Information?

22.  Will I have to go to court and who pays the costs of legal proceedings?

The ACTAPS Code encourages parties to resolve matters as early on as possible, by negotiation, mediation or alternative dispute resolution to try and avoid the matter going to court. If the parties are not able to settle the matter by agreement court proceedings may be necessary.

During the course of the litigation each party is responsible for his or her legal costs as the matter progresses. If the parties settle the dispute between themselves, they can agree between them who pays for costs. If the matter goes to a trial, then the judge will decide who should pay the costs of the dispute (the usual rule is that the losing party will pay a contribution to the winning party's costs).

23.  Are there time limits for bringing a claim?

Yes - the time limits depend on the type of claim. For example, a claim under the Inheritance (Provision for Family and Dependants) Act 1975, must be brought within 6 months of the date of grant of representation.

Timing can be critical in probate disputes and legal advice should be sought without delay. Contentious probate is a niche area and we strongly recommend that you seek legal advice from a specialist. You can find details of the lawyers in our dedicated Disputed Wills, Trusts and Estates Team here.

24.  What is Alternative Dispute Resolution (ADR)?

Alternative Dispute Resolution (ADR) is the collective name given to a range of methods of dealing with disputes without having to go to court. The most common and most successful method in probate disputes is mediation.

25.  The will doesn’t give me an inheritance that I was promised by the deceased. Is there anything I can do?

Disputes can arise after a person's death if a will does not reflect a promise made by the deceased before his death (such as a promise to transfer land or property). It may be possible to enforce a promise that is not subsequently fulfilled in a will but only if the claimant has relied on that promise and acted on it to his or her detriment. This is known as a proprietary estoppel claim.

For more information, see Estoppel and constructive trust claims.

26.  What is a Trust?

A trust is a "fiduciary" agreement which obliges a named person, called the trustee, to hold assets on behalf of a beneficiary or beneficiaries.

27.  What are the powers and duties of a Trustee?

A trustee is legally responsible for assets held in a trust and are required to manage the trust in accordance with the settlor's wishes (the settlor is the person whose monies/assets were placed into the trust).

A trustee must:

  • Deal with the trust in accordance with the will or trust deed;
  • Manage the trust (which includes deciding how to invest trust property and/or as to how the trust property is to be used) 
  • Keep the trust property safe. 
  • Act impartially and fairly to all beneficiaries; 
  • Act with reasonable care and skill;
  • Ensure trust assets are secure;
  • Keep sufficient records in order to show that the trust has been managed properly;
  • Not benefit himself/herself.

The powers of the trustee are provided by law and will also normally be set out in the will or trust deed. Typically they have the following powers:

  • To invest monies held in the trust;
  • To delegate certain powers to professional bodies (such as solicitors or accountants);
  • To insure trust property;
  • To be paid for their work (where they are a professional trustee, such as a solicitor or accountant).

28.  Can a Trustee be removed?

In certain circumstances trustees can be removed from office. The trust instrument should be checked to see if a power to remove trustees has been given or reserved . Otherwise, unless the trustee agrees to retire, the only option is an application to court seeking an order that the trustee is removed. The court will not however interfere with a trust without good reasons.

29.  Who can make decisions for someone that lacks mental capacity?

If the person who has lost mental capacity put in place a Lasting Power of Attorney before they lost capacity, their affairs can be managed by their appointed attorney. If the person has lost capacity without appointing an attorney, a friend or relative can apply to the Court of Protection to become their deputy.

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30.  What is the Court of Protection?

The Court of Protection has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. The Court can also give these powers to someone else (known as a deputy) if there is a need for decisions to be made on an ongoing basis.

31.  Who can become a Court of Protection Deputy?

A deputy is a person appointed by the Court of Protection to make decisions for someone who lacks mental capacity about their finances, property and health or wellbeing.

Deputies are usually relatives or friends of the person who lacks mental capacity to make their own decisions. A deputy can also be a solicitor. A solicitor is usually appointed where there are no suitable friends or relatives or the decisions to be made are very complicated.

32.  What can I do if I think an attorney/deputy is abusing their position of trust?

If you are concerned that a deputy or attorney is abusing their position, the Office of the Public Guardian must be informed. The Office of the Public Guardian is responsible for the supervision of deputies and attorneys.

If you believe that the deputy or attorney isn't acting in the best interests of the person they are responsible for, you can apply to the Court of Protection to remove and replace them.

33.  What can I do if a person that lacks mental capacity doesn’t have a Will?

If a person lacks capacity to make their own Will, the Court of Protection can make a Statutory Will on their behalf. An application will need to be made to the Court of Protection (usually by someone authorised to act for that person - such as their attorney or deputy).

34.  How much will it cost?

It is difficult to forecast the total cost of a contentious probate action as it will depend upon what work needs to be undertaken. The overall cost of court proceedings can vary from a few thousand pounds to many tens of thousands of pounds. The total costs will also very much depend on how the other parties deal with the claim. It is quite possible that the total costs of a contentious probate action could exceed £50,000.00 each side. However where a matter can be resolved by compromise the costs then can be a fraction of the cost of a fully contested matter.

 

Key Contact

Robert Horsey

Partner and Location Head, Tiverton

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+44 (0)800 0931336


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