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Disputed Wills & Trusts FAQs

Questions:
Click on the question below to take you to the answer.

1. I have not received an inheritance that I was promised. Is there anything I can do?
2. How much will it cost to claim on an estoppel?
3. Can a Will be contested?
4. Who can contest a will?
5. What should I do if I want to dispute a will?
6. What are the reasons to contest a will?
7. Who can challenge a will?
8. I think the will was forged. What can I do?
9. Are there time limits for contesting a will?
10. How much does it cost to challenge a will?
11. I think my loved one was pressured into making a will. Is the will valid?
12. I have not received an inheritance that I was promised. Is there anything I can do?
13. How do I obtain a copy of a will?
14. How can I prevent a Grant of Probate being issued?
15. How can I find out when a Grant of Probate has been issued?
16. What is contentious probate?
17. What is a caveat?
18. Can an executor be removed?
19. How can I obtain a copy of a will?
20. How can I prevent a Grant of Probate from being issued?
21. I think there is a more recent will to the one that is going to be admitted to probate. What can I do?
22. What information regarding the estate am I entitled to as a beneficiary?
23. What is the Court of Protection?
24. Who can make decisions for someone that lacks mental capacity?
25. Who can become a Court of Protection Deputy?
26. What can I do if an attorney or deputy is abusing their position?
27. What can I do if a person that lacks mental capacity doesn’t have a will?
28. Will I automatically inherit my partner's estate as a common law husband or wife?
29. What can I do if I have been left out of a will or I am unhappy about my share?
30. Are there time limits for bringing an Inheritance Act claim?
31. How much does an Inheritance Act claim cost?
32. What are the powers and duties of a trustee?
33. Can a trustee be removed? 
34. How much will a trust dispute cost?

Questions and answers: 

1. I have not received an inheritance that I was promised. 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.

2. How much will it cost to claim on an estoppel?
It is difficult to say how much the total cost of such a claim will be as it will depend upon what work needs to be undertaken and how the other parties deal with the claim.
The overall cost of court proceedings can however vary from a few thousand pounds to many tens of thousands of pounds. Depending on the circumstances of the case, we generally always try and settle our cases outside of court to keep costs to a minimum for our clients. This also means our clients have as much control as they can over any settlement reached.
We appreciate that the cost of obtaining legal advice or pursuing or defending a claim is often of most concern to clients. Depending on the circumstances of your case, we may be able to offer you alternative funding options, such as "no win, no fee" or a deferred payment arrangement.

3. Can a Will be contested?
A Will can be contested in several ways: it is possible that it does not comply with the formalities for creating a will (perhaps is it not signed or witnessed correctly). It could be forged. Alternatively an otherwise valid will could be challenged on the grounds of undue influence, lack of knowledge and approval, or lack of testamentary capacity. Finally it may be that the division of the deceased’s assets can be altered by a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or by a constructive trust or proprietary estoppel claim.

4. Who can contest a will?
Anyone who has a beneficial interest, or potential beneficial interest in the deceased's estate, can contest the will, if there are grounds for them to do so. If a will is found to be invalid, the estate will be distributed in accordance with an earlier valid will and if there is no earlier will, the estate will be distributed in accordance with the intestacy rules. Before bringing a claim, it is therefore very important to consider the potential effect on the entitlement to the estate should a challenge succeed.

5. What should I do if I want to dispute 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 prevent a grant of probate from being obtained or 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 contact us via email.

6. What are the reasons to contest a will?
A person might want to contest a will if it is not clear what the will means, or it may be ambiguous. This may mean that the parties have to ask the court to interpret or correct the will. The most common reason a person will contest a will is where that person finds they have been given less than they expected.

7. Who can challenge a will?
Anyone who had an expectation or entitlement to a person’s estate, who is disappointed with the effect of a will can challenge a will. Usually that means a challenge to a will is by a family member or a person or organisation with whom the deceased had an interest or relationship.

8. 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 and Trusts Team here.

9. Are there time limits for contesting a will?
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 email us here.

10. How much does it cost to challenge a will?
It is difficult to say how much the total cost of a will dispute will be as it will depend upon what work needs to be undertaken and how the other parties deal with the claim.

The overall cost of court proceedings can however vary from a few thousand pounds to many tens of thousands of pounds. Depending on the circumstances of the case, we generally always try and settle our cases outside of court to keep costs to a minimum for our clients. This also means our clients have as much control as they can over any settlement reached.

We appreciate that the cost of obtaining legal advice or pursuing or defending a claim is often of most concern to clients. Depending on the circumstances of your case, we may be able to offer you various funding options, such as "no win, no fee" or a deferred payment arrangement.

11. I think my loved one was pressured into making a will. Is the will valid?
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.

12. I have not received an inheritance that I was promised. Is there anything I can do?
Disputes often arise after a person's death if a will does not reflect a promise made by the deceased before his or her 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.

13. How do I obtain a copy of a will?
While a 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 representatives 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 from the Probate Registry.

14. 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.

15. How can I find out when a Grant of Probate has been issued?
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.

16. What is contentious probate?
Contentious probate is any dispute relating to the administration of a deceased person's estate. It could involve a dispute over the interpretation of a will, a dispute between executors or beneficiaries or a dispute over the value of estate assets.

17. What is a caveat?
A caveat prevents the issue of a grant of probate or grant of administration. For more information, see Caveats, warnings and appearances.

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

Executors cannot retire once they have accepted their appointment except by court order.

19. How can I obtain a copy of a will?
While a 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 from the Probate Registry.

20. How can I prevent a Grant of Probate from 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.

21. 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.

22. 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?.

23. 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.

24. 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.

25. 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.

26. What can I do if an attorney or deputy is abusing their position?
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.

27. 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).

28. Will I automatically inherit my partner's estate as a common law husband or wife?
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.

29. 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 Act.

If you are considering a claim under the Inheritance Act, it is essential that you seek legal advice 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.

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

30. Are there time limits for bringing an Inheritance Act claim?
Yes - a claim under the Inheritance Act, must be brought within 6 months of the date of grant of representation. If you are already out of time please do still contact us as we may still be able to help.

31. How much does an Inheritance Act claim cost?
It is difficult to say how much the total cost of an inheritance dispute will be as it will depend upon what work needs to be undertaken and how the other parties deal with the claim.

The overall cost of court proceedings can however vary from a few thousand pounds to many tens of thousands of pounds. Depending on the circumstances of the case, we generally always try and settle our cases outside of court to keep costs to a minimum for our clients. This also means our clients have as much control as they can over any settlement reached.

We appreciate that the cost of obtaining legal advice or pursuing or defending a claim is often of most concern to clients. Depending on the circumstances of your case, we may be able to offer you alternative funding options, such as "no win, no fee" or a deferred payment arrangement.

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 and Trusts Team here.

32. 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).

33. Can a trustee be removed?
In certain circumstances trustees can be removed from office. The trust document 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.

34. How much will a trust dispute cost?
It is difficult to say how much the total cost of such a dispute will be as it will depend upon what work needs to be undertaken and how the other parties deal with the claim.

The overall cost of court proceedings can however vary from a few thousand pounds to many tens of thousands of pounds. Depending on the circumstances of the case, we generally always try and settle our cases outside of court to keep costs to a minimum for our clients. This also means our clients have as much control as they can over any settlement reached.

We appreciate that the cost of obtaining legal advice or pursuing or defending a claim is often of most concern to clients. Depending on the circumstances of your case, we may be able to offer you alternative funding options, such as "no win, no fee" or a deferred payment arrangement.

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