Book Review: A Practitioner’s Guide to Probate Disputes, 1st edition, by Nasreen Pearce

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Published by: Wildy, Simmonds & Hill Publishing – ISBN-13: 978-0854901371

Book reviewThis comparatively slim volume at 260 pages aims to cover the wide area of probate disputes and so necessarily, some of the content is not particularly detailed. However, retired circuit judge Nasreen Pearce, does give a succinct consideration of the area so this book would be useful as an entry point or to quickly double check points to then consider further. Students and practitioners alike would find it of use. Not only Wills, but also lifetime gifts, for example, are included.

Purpose of the book

The aim of this book is to address how disputes can arise over Wills and inheritance generally (such as with jointly owned assets and lifetime gifts) and to assist with the procedure of bringing a claim. As the opening words of chapter one state, “disputes over Wills and inheritance have been soaring since 2006. In 2011, they were 64% higher than in 2006.” With increasingly complex and fractured families clearly this is a growth area. Practitioners are more and more likely to encounter probate disputes, either in acting in a challenge or having a Will they have drafted, being challenged or a challenge being made during their administration of an estate.

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Content

The book starts with a summary of the law including cases on areas such as the requirements for the formal validity of a Will and testamentary capacity. This gives the practitioner the tools to limit, as far as possible, any disputes over Wills they are drafting. It also provides the tools to challenge a Will. Lifetime gifts and jointly held property are also considered.

The book then goes on to look at the procedure to follow in the event of challenging Wills generally, with a specific section on cases of rectification. Precedents are given to assist with any claim, such as a witness statement/affidavit about testamentary documents and a defence alleging want of due execution due to a lack of testamentary capacity.

There is a section on claims under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A) and a look at statutory Wills.

Structure & layout

Although not a large book, it comprises 15 chapters with the addition of precedents in the appendix.

The first chapter is an introduction to the area and gives a quick overview of matters such as the formalities of Wills, grounds for challenge and the statutory right to challenge through the use of the I(PFD)A. It also makes brief mention of the prospective reform to the law of Wills with the Law Commission’s Twelfth Programme of Law Reform published on 23 July 2014. The need for reform is then addressed in more detail in the relevant chapters that follow.

Chapters two to seven focus on Wills: their form, content and interpretation; their execution (so the formal requirements, attestation and competence of witnesses for example); testamentary capacity; knowledge and approval; undue influence and forgery.

Chapter eight looks at the increasingly common issue of burial disputes and who has the right to choose how and where the deceased’s body should be disposed of. It gives a short logical overview of this (sometimes fraught) area and includes the impact, or not, of the European Convention on Human Rights. This chapter ends with a useful guide to the less than clear procedure to be followed in asking the court to resolve disputes over the possession and disposal of the body.

Chapters nine and ten then conclude Wills by covering rectification in chapter nine and the circumstances when Wills are revoked in chapter ten. After outlining the law on rectification in chapter nine, this chapter ends with the procedure to be followed in both unopposed and opposed applications. Chapter ten on revocation goes through the Wills Act 1837 circumstances when a Will may be revoked in a useful style.

Leaving Wills behind, chapter eleven moves on to consider lifetime agreements and gifts, including the recently explored areas of donatio mortis causa and proprietary estoppel.  Chapter twelve turns to jointly owned assets and assets held on constructive trust. Jointly owned assets are considered in the context of the I(PFD)A, whereas there is a consideration of case law on the position of whether or not there is or could be a constructive trust of jointly or solely owned property.

Chapter thirteen looks at claims under the I(PFD)A, covering the different categories of who may apply, the important point of the time limits for applying, the grounds for making such a claim, matters the court must take into account, possible orders and property which the court can make orders over. The amendments to the I(PFD)A introduced by the Inheritance and Trustees’ Powers Act 2014 are incorporated.

Chapter fourteen takes the reader through the complexities of the Civil Procedure Rules which will be of most use to non-contentious practitioners who can gain an idea of them from this. If nothing else, it might warn practitioners to seek specialist advice if they receive a challenge to a Will or during the course of administering an estate!

The last chapter ends with guidance on making an application for a statutory Will in the case of a testator who lacks capacity to make their own Will. The appendices follow with useful precedents to assist with any claim, such as some examples of pleaded undue influence and a defence limited to putting the PR to proof of the Will.

Most chapters end with a useful conclusion, which aims to bring the preceding threads together in terms of a challenge on that ground.

Tools

This book as a whole is a useful toolkit to carry around and consult as needed, although care should be taken, as with any book, where subsequent cases may have modified the law or shown further issues to be aware of.

It is somewhat surprising for a 2016 book looking at testamentary capacity, that no mention is made of the November 2014 case reported in 2015 of Walker v Badmin [2015] WTLR 493. It would have been most useful to cover the fact that this case decided that it was still the Banks v Goodfellow test and not the Mental Capacity Act 2005 test by which testamentary capacity is to be judged, rather than setting out both tests and discussing them without making this clear.

Clarity & readability

The main feature of A Practitioner’s Guide to Probate is its concise and easy to read style. The contents page is sufficiently detailed to facilitate the quick finding of the relevant part.

Relevance to practitioners

This gives a useful entry point to this area and could be consulted as a spring board to further research. It must be remembered, as with any book, that subsequent cases will often change or modify the area, but this book will give a valuable initial overview.

Related content....

An Introduction to the Probate Process for Paralegals & Secretaries

This ONE hour webinar will provide an overview of the probate process so that assistants are encouraged to learn more about its constituent parts and be more proficient in their day-to-day work

Live webinar: 17 January 2017 | 1pm-2pm

Recordings available

Want to know more and book? Visit LiPS Legal

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