Having an up-to-date will in place is vitally important to ensure that your estate will be distributed in accordance with your wishes. It is essential that you have a will in place if you have a spouse, a civil partner, children or step-children.

Failing to create your will or to update it when necessary could mean that there are unintended beneficiaries of your estate. In the absence of a will, your estate will be distributed in accordance with the rules of intestacy which may lead to close family members being left out. As a result of not putting a will in place or not having an up-to-date will, disputes may arise between family members, beneficiaries of the will or people who were expecting to benefit from your estate. A few of the most common probate disputes are discussed in more detail below. 

Intestacy and the Priority of Beneficiaries

Where the deceased dies without having made a will, they will be considered to have died intestate. In such circumstances, the intestacy rules govern how the estate will be distributed.

If the deceased leaves a surviving spouse or civil partner, they will be granted all of the personal property owned by the deceased, as well as £270,000 of the deceased’s liquid assets. The remainder is distributed between the spouse (50%) and any children of the deceased (50%).  If there are no surviving children of the deceased, or if liquid assets in the estate amount to less than £270,000, the entirety of the deceased’s estate will be inherited by the surviving spouse or civil partner.

If the deceased does not leave a surviving spouse or civil partner, the entirety of the estate will be inherited by the first in the following hierarchy of beneficiaries:

  • The children of the deceased;
  • The parents of the deceased;
  • The siblings of the deceased;
  • The grandparents of the deceased; or
  • The uncles or aunts of the deceased.

Intestacy often results in disputes between those who believe they should have been left either specific items from the deceased’s estate, or believe they should receive a certain portion of inheritance due to their relationship with the deceased.

Inheritance Act Claims

Under the Inheritance Act 1975, parties who feel that they have been inadequately provided for in a deceased’s will or on intestacy can apply to the court for financial provision. The prerequisite criteria to bring an Inheritance Act claim is that the disposition of the deceased’s estate affected by the will or the law of intestacy is such as to not make reasonable financial provision.

The Court will consider a range of factors in making financial provisions, including the claimant’s financial resources and needs, the size of the estate and any physical or mental disability of the claimant.

Examples of common claimants under the Inheritance Act include:

  • A cohabitee, who may or may not have also been dependant on the deceased for their maintenance, and who has not been adequately provided for;
  • Children of the deceased over the age of 18, whether or not they were maintained by the deceased;
  • Children of the deceased under the age of 18; and
  • Any recipient of regular, non-contractual financial contributions from the deceased on which they are dependant.

In circumstances where a family member has specifically been excluded from a will, the deceased may have prepared a Letter of Wishes explaining the reasoning for drafting the will as they did. If this is the case, this will be a relevant factor in assessing the claim, but will not itself defeat a claim.

The dependant’s claim, supported by the necessary financial information, will be considered by the court which has a broad discretion to determine whether or not the will or intestacy provides reasonable financial provision.

Inheritance Act claims will often be contested by the beneficiaries named in the will or who take on intestacy and so can become complex and protracted cases. Given the significant costs involved in litigating an Inheritance Act claim and the tension it often creates between family members, many cases are settled out of court and few proceed to trial.

Undue influence

A common complaint raised against the validity of a will is that of the deceased being subjected to undue influence at the time of drafting their will. This is where an individual, whether family member, friend or someone with little connection to the deceased, pressures them to execute a will or amend an existing will in order to ensure that certain provisions are included, or certain individuals excluded, which financially benefits the person who unduly influenced the deceased.

Such claims can sometimes be accompanied by questions as to the deceased’s capacity to comprehend their actions in drafting a will in such a way, often as a result of their illness or disability.

Possible signs of undue influence are:

  • The changing of a will shortly prior to the deceased’s death;
  • The keeping of any significant amendments to a will secret from friends and family:
  • The surprise inclusion in the will of unrelated parties; or
  • The surprise exclusion of a close family members.

Key to any assessment of undue influence will be the perceptions and recollections of the solicitor that drafted the will, who should have retained the notes of any meetings with the deceased in which the provisions of the will were discussed. If the solicitor did not deem there to be anything untoward about the circumstances in which the deceased’s will was created or amended, this will be persuasive evidence against claims of undue influence.

Ultimately, the burden of proof is on the claimant to prove that there was coercion or pressure on the deceased to draft the will in a certain way. If the evidence only establishes persuasion, then that will not constitute a case of undue influence.

If for whatever reason you feel that someone has been unduly influenced into changing their will, it is important that you take legal advice as soon as possible and retain any evidence of the deceased’s intentions that support an argument of undue influence.

Proprietary Estoppel and Common Intention Constructive Trusts 

Proprietary estoppel is an equitable principle whereby the promises made by the deceased to an individual in their lifetime are contrary to the provisions in the deceased’s will or an entitlement on intestacy. In order for a claim of proprietary estoppel to be successful, the deceased must have repeatedly and unambiguously promised the individual something, whether it be the inheritance of a business, a property or share of money, and the individual must have relied on this promise to their detriment.

Similarly, the existence of a common intention constructive trust is an equitable principle by which an individual can claim that an agreement, or a common understanding, existed with the deceased contrary to their will or a legal title. These trusts tend to occur where there is a common understanding that property is jointly owned by two people, both of whom make contributions to the property, however the legal title to the property is held in only one name. While these cases can occur while both parties are still living, they become more complex when one has died as proving the case solely relies on the word and evidence of the claimant.

In both cases of proprietary estoppel and common interest constructive trust, the burden of proof is on the claimant, as the default position adopted by the court is to honour the written will or legal title. The claimant can rely on the oral evidence of witnesses to support their case, but written correspondence or documentation from the deceased attesting to the promise or common understanding will be the most persuasive evidence.

Negligent Administration of the Estate

When a person makes a will, they name executors who will be responsible for the administration of their estate. Often, the lay executors named by the deceased will instruct solicitors to administer the estate on their behalf. If the deceased died intestate, then it will be their closest relation’s responsibility to administer the estate, whether that be a surviving spouse, parent or sibling.

Estates, especially large ones with many real and liquid assets, can be complicated to administer, resulting in the process often being expensive and time consuming. If the administration of the estate is contested, whether it be by Inheritance Act Claim or complaints raised against the validity of the will, there are likely to be further significant delays in administering the estate until the dispute is resolved.

However, circumstances can and do arise where an estate has been administered negligently and the beneficiaries may have a cause of action against the executors. These can include:

  • The distribution not being as per the provisions in the will;
  • Executors taking an unreasonable amount of time to administer the estate;
  • Executors charging disproportionate fees for the work done;
  • Standard responsibilities such as paying mortgages on properties, or settling liabilities to the estate not being completed; and
  • The mishandling of estate accounts.

If a beneficiary or family member feel that the executors or solicitors administering the estate are doing a sufficiently poor job that it justifies their removal, they can apply to the court for such an order. If all of the beneficiaries are unified in their desire for the executors to be replaced, this process may be a simple formality. However, if there is a disagreement as to whether the executors should retain their responsibility, or disagreement as to who should replace them, this will most likely need to be litigated at court, with the judge ultimately deciding on the best course of action.

Alternatively, instead of removing the executors which may prove difficult, any beneficiary is able to apply to court in order to request that specific action be taken by the executors. This could be as simple as ordering the executor to prepare a comprehensive estate account or a request that the executors clarify their reasons for administering the estate as they have done.

How Can We Help?

Lupton Fawcett has a highly regarded Dispute Resolution department with considerable experience in all areas of disputed probate. If you have recently become involved in a probate dispute, we will be able to advise you and guide you through this complex and contentious area of the law.

Our Private Client Department offers will writing services to ensure that your will reflects your current intentions and to provide for those you wish to benefit from your estate, thus avoiding the uncertainties of intestacy. We recommend that you review your will every 5 years or after a significant change to your life (e.g. a marriage, divorce, children etc).

Alternatively, if you are an executor of an estate or if you have lost a relative who has died without leaving a will, Lupton Fawcett also provides estate administration services, assisting with the legal processes following a bereavement.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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