Wills & Trust disputes (“Contentious Probate”) – causes and solutions
Disputes relating to a Will, estate, trust or the financial affairs of the elderly and infirm are on the increase. Why is this and what are the possible solutions should a conflict arise?
Frequent areas of dispute (“contentious probate”)
- Disputes relating to the validity or interpretation of a testamentary instrument e.g. a Will or codicil. Commonly problems arise due to an allegation that the deceased did not have the necessary “mental” capacity to make a Will; did not know or approve of the contents of the Will; were being unduly influenced into making the Will; the Will has been made fraudulently or has been revoked by marriage or a later Will. Alternatively, a Will might be valid but a clause or unclear and requires rectification.
- Disputes relating to the validity or interpretation of a trust instrument e.g. a trust deed or document. There are many instances where a trust deed simply failed or the trust was not properly constituted (formed) or requires clarification.
- Claims under the Inheritance (Provision for Family and Dependants) Act 1975. These are claims against the estate of someone who has died for financial provision out of his/her estate.
- Disputes over the administration or distribution of someone’s estate. For instance, someone entitled fails to receive what they consider should have been left to them or those tasked with distributing an estate fail to do so properly and expediently.
- Removing or substituting a trustee who either fails to properly administer a trust or causes the trust to suffer loss to the beneficiaries.
- Disputes over pre-death gifts of money or property. It is not altogether uncommon to discover that an elderly or infirm person has made a gift of money or property in circumstances that give rise to a suspicion that the gift was obtained using undue influence. Equally, sometimes it is upsetting to discover that a promised gift or inheritance is not provided for.
- Applications to the Court of Protection in order to protect an elderly or infirm person from financial exploitation.
Disputes in relation to a Will, estate, trust or the financial affairs of an elderly or infirm person are very often worrying and upsetting for those involved. They can also be very expensive to resolve through lawyers and the court system. Those choosing or forced to go to court in order to resolve a problem or to make a claim will often be required to pay significant sums of money and they also risk paying the other side’s legal costs if they lose their argument. It is also very important not to lose sight of the possibility that much of what is being fought over may be lost in the costs of a dispute.
Why do disputes arise?
There is no single definitive reason. However, it is possible to identify some of the usual causes. Isolation of an elderly person can factor as can a failure to ensure a Will or trust document is valid and clear. Sometimes those with the right to administer an estate or trust do not know what is required of them or stubbornly refuse to do what is necessary. On occasions the person who has died has failed to provide a promised inheritance or provide sufficient financial support for those left behind.
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What are the solutions if a dispute arises?
- Clients should be prepared to negotiate. Discussions must be undertaken reasonably and realistically. Only the lawyers benefit from points of principle!
- Client expectations must be managed. What is possible and what is the ultimate aim?
- Clients must be fully prepared to mediate. Mediation is a firmly established process. Clients must be warned that an unreasonable refusal to engage in ADR e.g. mediation, can have a very significant impact on a party’s responsibility for, or entitlement to recover, the costs of any court claim. In short, a party refusing to mediate may later bitterly regret that decision.
- Ensure that the issues in dispute are fully and properly identified and the remedies sought clear and achievable. In other words, clients ought not to argue over issues that, in the context of the dispute, are not worth fighting over.
- If all else fails then ensure that the client understands fully both the risks and rewards and be prepared to pursue or defend court proceedings with the resolve necessary. Preparation is very often the key to success.
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