The death of a loved one can lead to an incredibly distressing time, even more so where there is a challenge to the Will or a dispute concerning the deceased’s estate generally. Our team is here to help you find the best solutions when that does happen.
The team at Lupton Fawcett is experienced in handling difficult, emotionally charged situations. Our aim is to make often extremely distressing issues as pain-free as possible.
We have one of the UK's leading teams in this area of law and have extensive experience in dealing with the following types of disputes:
- Validity of Wills
- Claims involving trusts/trustees
- Negligent Will drafting
- Restructuring of trusts
- Trusts disputes
- Inheritance Act Claims
- ‘Estoppel’ cases - where you have been promised something by the testator in return for doing something for them
In particular, in recent years we have acted for clients in respect of:
- A multi-million pound claim involving a conflict between a Will made in England and another Will made in a different European country;
- Successfully challenging a Will made by a dementia sufferer that excluded one of the testator’s children from the Will all together;
- In a landmark and well reported case, obtaining an award for a client for the entire net proceeds of the testator’s estate on the basis of a proprietary estoppel.
Whichever side we represent, we strive to help our clients to achieve a settlement out of court where possible. However, if a settlement is not possible we have the necessary experience to take claims to trial. Where litigation is necessary, we will assist our clients to bring their disputes to court quickly and efficiently.
Many members of our specialist contentious probate team our members of ACTAPS, the Association of Contentious Trusts and Probate Specialists.
So as to help you understand some of the terms often involved with Wills and estates, take a look at our glossary of common terms. If you have any questions, take a look at our “Frequently Asked Questions” below, or get in touch today.
We provide advice on a wide range of legal issues to clients around Yorkshire and beyond from our offices in Leeds, York and Sheffield. For an initial discussion about your case, contact one of our specialist solicitors today using the contact details below. Alternatively, please complete our questionnaire and return it to us so we can contact you.
Frequently asked questions
Is the Will valid?
You can validly leave your entire estate on the back of a cigarette pack. There are however strict formalities that must be complied with in respect of the signing the Will and witnessing of it. However, even if you have a complicated, official looking Will drawn up by a solicitor your last testamentary wishes may never take effect if the Will is not correctly prepared, signed and witnessed.
A common issue that arises is that marriage usually revokes a Will. Another one is the impact of divorce to a pre-existing Will. This is unfortunately often overlooked.
Signatures on Wills have been forged. People have pretended to be the testator and tricked the Will drafter. Often, those signing their Will have not had the testamentary capacity to understand the consequences of their Will. Sometimes people have been coerced into signing. Others have signed their Wills without knowing and approving what was in them.
A few have had their minds poisoned by others so that they have excluded those whom they truly love. Sometimes people make a mistake on the face of the Will with serious consequences. All too often, a person’s signature has not been properly witnessed. It is not uncommon for people to promise a person something in their Will and then fail to follow through with that promise.
If any of these circumstances apply then there may be grounds to challenge either the entirety of the Will or a specific part of it.
Our specialist team can help you with:
- Challenges to the validity of Wills, involving, amongst other matters, lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, forgery or lack of due execution;
- Claims involving full, half secret, resulting, constructive and sham trusts;
- Situations where you have been promised something, often land, in return for doing something during the testator’s lifetime i.e. ‘estoppel’ cases;
- Protecting your interest and/or claim via Citations, Caveats, Warnings, Appearances;
- Claims involving the construction and/or rectification of the wording of a Will; and
- Claims involving mutual and mirror Wills.
How do I get my fair share?
There are many ways in which a beneficiary can obtain his or her entitlement. This does not always involve or need the intervention of the Courts.
We have a good track record of ensuring clients receive their entitlement without the need for issuing court proceedings, whether through negotiation or via a more structured mediation process. When necessary, and only if appropriate, we will advise beneficiaries to commence court proceedings.
In some cases, those proceedings may be to challenge the validity of a Will because an earlier one reflects the true last testamentary wishes of the deceased. In other cases, those proceedings may be brought under the Inheritance (Provision for Family and Dependants) Act 1975 (commonly referred to as “the Inheritance Act”) to ensure that a dependant receives reasonable financial provision which has not been provided for by the Will.
We can help you with:
- Disputes with other beneficiaries;
- Proceedings for financial provision under “the Inheritance Act”;
- Resulting, constructive and sham trust claims;
- Proprietary and promissory estoppel issues;
- Obtaining interim grants of administration to protect the assets of the estate; and
- Tracing your assets and your financial investments within an estate.
I am an Executor and Trustee. Can you help me?
We act for both professional and lay executors and trustees in a wide array of cases involving disputed estates and trusts.
Sometimes, the advice given amounts to little more than guidance or reassurance to a lay trustee who needs confirmation that their decision as to how to proceed with a particular problem is appropriate and within the scope of their duty.
On other occasions, our involvement has related to executors propounding (proving) the validity of Wills and trustees seeking permission from the Court to issue proceedings for the benefit of the trust fund.
We can help you with:
- Proceedings that you can bring to propound (prove) the validity of a Will;
- Disputes you may have with beneficiaries or with your co-executors/trustees;
- Bringing proceedings to rectify a mistake in a Will;
- Proceedings to revoke a grant issued to someone other than you;
- Applications that you can make to the Court for the Court’s approval for your actions (a “Beddoe Application”);
- Injunctions in the course of or before proceedings; and
- Any type of proceedings, including professional negligence claims, to recover losses to the estate/trust.
Can I remove the Executors and Trustees?
Some executors/trustees have taken from the estate for their own benefit. Others should not continue to act because they have done so poorly,or even negligently.
Trustees can be removed from office or they can give up their positions voluntarily. They can be removed either before or after they have taken up their duties officially. Ideally, it is often best to try and persuade an executor or trustee to renounce their office voluntarily, but sometimes, where they have intermeddled in the affairs of the estate or trust, this may not be possible and a Court order may be required.
Conversely, there may be a situation where you want to force a named executor to take out or refuse a grant of probate.
We can help you with:
- Applications to pass over a named executor or trustee before they have taken office;
- Applications to remove or replace an executor or trustee after they have taken office;
- Instructions to executors to accept, refuse or take a grant or to prove a Will; and
- Proceedings to make an executor or trustee account for monies;
What happens if there is No Will? Who administers the estate? Who gets what?
Two out of every three people in the UK have not made a Will. Very often, the consequences of not making a Will can have a serious financial impact on the finances of the deceased’s estate and lead to confusion as to who administers the estate.
There are statutory rules to determine the order of who has priority in obtaining a grant of representation and who has priority in terms of inheriting the assets of the estate.
Sometimes, where there are competing interests for a grant of representation, it comes down to who is the quickest to obtain the necessary information, complete the relevant forms and make the application. We can help you be the first to apply.
We can also help you apply to cancel a grant that has been issued to someone who you do not think should be administering the estate.
We can help you with:
- Determining who has priority to grant of representation, who gets the assets and whether it is in your interests to apply for a grant of representation;
- Proceedings to cancel a grant of representation taken out by someone who you do not think should be in a position of control;
- Summons for directions to a District Judge or a Probate Registrar to determine who should take out grants of representations; and
- Applications to remove or replace personal representatives.
I am not happy with my current legal advisor?
The area of disputed probate claims is experiencing a surge of activity and yet those with the specialist knowledge in this field are still few and far between.
All too often practitioners are keen to offer this additional service to their clients in order to keep them when by doing so they are not acting in their client's best interests because they do not have the necessary experience and expertise. This can lead to errors, missed opportunities, delays and, at worst a professional negligence claim.
We have acted in a number of cases which have been referred to us on the back of the negligence of a previous practitioner. Our team have considerable experience in handling professional negligence claims within the context of disputed probate actions.
These are often complex claims as they involve detailed analysis of the losses caused by the negligent practitioner to the estate and to the beneficiaries.
We can help you with:
- Bringing and winning professional negligence proceedings in the context of a dispute probate/trust case;
- Applications for the Court’s permission to bring professional negligence proceedings (a “Beddoe Application”); and
- Finding and selecting Forensic Accountants, Document Examiners (“Handwriting experts”), Psychiatrists, Geriatricians and other appropriate professionals
Do I have to go to court?
Court proceedings should be viewed as being the last option. All too often, parties launch into litigation without proper consideration of its consequences.
Sometimes, however, Court proceedings are necessary where alternative methods of resolving disputes – often referred to as Alternative Dispute Resolution, or ADR - have failed to produce a satisfactory result.
The members of our team have amassed considerable ADR experience in resolving disputes at an early stage before they go anywhere near the Courts.
Mediation remains a popular method of resolving disputes. Most of our clients have enjoyed a positive experience from mediation, with over 80% resolving their differences with the other parties either at the mediation itself or shortly afterwards and as a direct result of what took place at it. Everything discussed at mediation is on a 'without prejudice' (i.e. confidential) basis and cannot, therefore, be referred to in Court at a later stage.
In addition, the Dispute Management Department has the benefit of the experience of having two accredited mediators: Paul Houghton and Howard Rutter.
There are many other ways of settling a dispute without the need for court proceedings. There is no “one size fits all” when it comes to ADR. Whatever the case we will work for you to help you decide what approach suits you best.
We can help you with:
- Advising you on the various ADR options, the pros and cons and costs of each;
- Structured negotiations in correspondence;
- “Without Prejudice” meetings; Negotiating within the context of a Mediation;
- Other forms of ADR, such as Early Neutral Evaluation.
- Paul Sykes acted on behalf of a senior probate lawyer in resolving a long running, complex and acrimonious Family Trust and Probate dispute. This included cross-border and international dimensions. The Estate had been tied up for years. A specialist City of London firm had been unable to resolve the case for the client.The case was transferred to Paul by recommendation. His intervention and urgent issue of proceedings forced the opponent to negotiate. Unusually, “alternative method” service of the proceedings on the opponent, abroad by email was approved. This tactic saved substantial time and costs. A satisfactory settlement and distribution of the Estate was achieved within a few months of being instructed.
- Paul Sykes acted on behalf of the successful Defendants in Beeforth -v- Beeforth, Court of Appeal.  EWCA Civ 1151.The Times [17.9.1998]
This was a test case, regarding inheritance and partnership issues in a highly contentious farming and ancillary business. It established that the court had to carry out a balancing exercise and weigh proportionality regarding a strike out for breach of “Unless” orders. Successful reinstatement of the Defence was achieved. N.B. the Defendants were represented by other solicitors in the earlier proceedings.
The clients’ eviction from extensive farmland and properties was overturned. Also, Paul made a successful "Calderbank" offer on costs. This meant that the opponent had to pay the clients’ costs of the appeal to the Court of Appeal. The Defence was reinstated and the case was later settled on favourable terms.
As a final step, a solicitors’ negligence claim was then successfully made against the clients’ previous solicitors. A full indemnity, and damages were obtained from the previous solicitors.
Details: Turning round an "Unmitigated Catastrophe"
When the Defendants in Beeforth v Beeforth were struck out of Court for delay, things could not have looked much bleaker for them. Their previous solicitors had failed to produce documents in Court by a specified date, after several chances. The clients suffered their entire defence being struck out in a complex and high value, acrimonious case. It had already dragged on for 6 years. To add insult to injury, they had been ordered to pay all the costs.
To make matters worse, they had also been ordered to vacate their land. It was a particularly hard decision on them because this was more than just a case of losing a courtroom battle. It meant losing extensive farmland that for years had been a thriving agricultural business and leisure park. So when an existing client whom Paul Sykes had represented in a complex and difficult matter recommended that they talk to him, it was great advice!
The case had been decided against the clients in the Chancery Division. The strike out decision, which was for breach of a previous Court Order seemed not to deliver real justice. The case was taken up from scratch and challenged through the Court of Appeal. In succeeding, the decision was a legal precedent in "striking out of cases", an important and fast developing part of the Law.
The key argument accepted by the Court of Appeal was based on "proportionality". Due to experience and skill, plus a fundamental desire to see that justice was done, the clients were able to get the case back on the road. In addition, a sensible “without prejudice” settlement offer was made to the other side. This was rejected, resulting in a Costs Order against the opponent. This was all within 3 months of taking on the case.
“…It was great to turn this around so dramatically and quickly. Originally it was an unmitigated catastrophe. Within 3 months of first seeing the clients, the judgment was overturned. The case was then driven forward to a successful conclusion. Action was also taken against the client's previous Solicitors to win compensation and costs…” J Paul Sykes
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