Challenging a Will

There are various grounds which can be used to challenge the validity of a Will. However, before the Court will look at those grounds you need to overcome an initial hurdle which is to prove that you are in a class of “disappointed beneficiary” who has suffered a loss as a result of the last Will.

The First Hurdle - a Disappointed Beneficiary

A “disappointed beneficiary” is someone who received more under an earlier Will than under the last Will or someone who would have benefitted under the intestacy rules if the last Will had not been executed and the deceased had therefore been deemed to have died intestate.

If you benefit under an earlier Will but it is not the Will which immediately pre-dates the last Will then you would need to successfully challenge more than one Will in order to get back to the position where “your Will” would be declared the last valid Will and be put through probate. It can be hard to succeed upon a claim against one Will so a claim against more than one Will is even more difficult, however in order for us to assess whether your claim is one worth pursuing then call or email us today for your FREE CASE REVIEW.

The Court of Protection (COP) is a Court which looks after the interests of people who lack mental capacity.

What matters do the Court of Protection deal with?

The most common function of the COP is to appoint someone (known as a Deputy) to manage a persons financial affairs or to make health and welfare decisions, for people who lack the capacity to do so themselves.  They also deal with disputed matters involving Attorneys and Deputies such as:

Allegations of Attorneys/Deputies not acting in the best interests of the person who lacks capacity

Sometimes people will “gift” money to themselves as an Attorney or Deputy.  Often, this is done innocently or in ignorance of the rules. Sadly, sometimes an Attorney or Deputy will simply use the money for their own personal gain.  If you believe that this is the case, you should report this to the Office of the Public Guardian and they will investigate this as a potential abuse.

If you have concerns that an Attorney or Deputy is acting inappropriately or even stealing money, you can call or email us for a FREE CASE REVIEW including guidance on how best to proceed.

Objections to the registration of a Lasting Power of Attorney or Enduring Power of Attorney

Often people will receive notice that a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) is being registered and they wish to object to this. This most commonly occurs when the maker of a Lasting Power of Attorney lacked the capacity to make the LPA or EPA in the first place, has been pressured into doing so or because the Attorney is unsuitable to take up the role.

If you are trying to register a Lasting Power of Attorney or an Enduring Power of Attorney and an objection has been made we can assist you with complying with all of the Court requirements and guide you through the process.  If you want to raise an objection to the registration of an LPA or EPA we can advise you on your options for doing so. Call or email us today for a FREE CASE REVIEW.

Statutory Will applications

A Statutory Will is one made by the Court of Protection on behalf of someone who does not have capacity to make a Will for themselves. The COP needs to approve the Will before it can be executed to be sure that the contents of the Will are in the best interests of the person who lacks capacity.  Applications for approval of Statutory Wills are commonly made if someone does not have a Will already or if they had previously gifted a property in a Will which has subsequently been sold to pay for care home fees or if they have had no contact with any of the named beneficiaries for many years.

Where all parties are in agreement applications are made without the need for any Court hearings.  However, those materially affected by the new Will need to be given notice of the application giving them the opportunity to raise objections if necessary.  These cases can therefore become contentious even when this is not anticipated at the outset.

It is advisable to instruct Specialist Inheritance Lawyers, to guide you through the process and ensure that the complex aspects of such cases are complied with properly.

If you have received notice of an application for approval of a Statutory Will and are unsure whether or not to raise an objection, or if you have made an application where someone is now objecting then call or email us for a FREE CASE REVIEW and we can advise you on your options for raising or defending objections.

Funding

In Court of Protection cases, unless they relate to health and welfare matters, the costs are paid from the funds of the person who lacks capacity. However, the Court does have power to make costs orders so that if they feel that one party has been acting maliciously, they can make that party pay all of the costs involved.

If you are unsure of how your potential COP case could be funded then call or email us for a FREE CASE REVIEW today.

Our Successes

Public Guardian v Marvin [2014] EWCOP 47

In this case, our Specialist Inheritance Lawyers acted for the Respondent who was the appointed Attorney for his Father, dealing with both his property and financial affairs as well as his health and welfare.  Social Services reported our client to the Office of the Public Guardian as they alleged that he was not acting in his Father’s best interests in managing his financial affairs and making decisions regarding his health and welfare. The Office of the Public Guardian were trying to revoke the Powers of Attorney and appoint an independent Deputy.

We argued that whilst the Respondent had not technically had the power to act in the way that he did, this was not done maliciously and nor did the Respondent receive any personal gain from his actions. This argument was accepted by the Court and the judge allowed the Health and Welfare Lasting Power of Attorney to continue.  He also accepted our request that the respondent be appointed a Deputy jointly with a partner of McMillan Williams Solicitors Limited.  The judge admitted that his decision was

“…unusual… and should not be regarded as setting a precedent for other cases”.

This case shows how, with the use of our Specialist Inheritance Lawyers, we work hard to achieve the best results for our clients, even those which the Court wouldn’t normally order.

If you believe you have an unusual case and would like some guidance on how best to approach it then call or email our Specialist Inheritance Lawyers today for your FREE CASE REVIEW.


Hayley Bundey
Hayley Bundey
Partner and Head of Estate & Trust Dispute Team
  • Have you recently lost a family member or friend and find yourself in the middle of a dispute dealing with their estate?

  • Have you been cut out of their Will unfairly?

  • Have you been left in financial difficulty by their death?

  • Do you have concerns that someone has mis-appropriated the deceased’s assets either in their lifetime or since their death?

  • Are you concerned that the deceased’s Will was signed when they lacked capacity or that they were pressured into signing it?

  • Did the deceased mean to make provision for you in their Will but didn’t get round to it?

DON’T DESPAIR!

You may have a good claim against their Estate and we are here to guide you through the process

STEP BY STEP.


We are not only specialist inheritance litigation solicitors who will professionally fight your corner but we will do so in a sympathetic and caring manner as we know what a distressing time it can be to pursue a claim when you have lost a loved one and are in dispute with your surviving family members.

We are the largest firm of highstreet solicitors and we are continuing to grow due, in part, to the success of our inheritance litigation lawyers. We are therefore unrivalled in our ability to be your LOCAL FIRM who specialise in this area of law.

DON’T BE FOOLED

into using firms who claim to have expertise in this area when they are in fact just Will writers

WITH NO LITIGATION EXPERIENCE.

We Can Help

We understand that taking the next step to obtain legal advice on inheritance disputes can be worrying for our clients so we have made the process as simple and trouble-free as possible.

We offer an entirely FREE CASE REVIEW where we will discuss your specific circumstances with you and advise on your options going forward including the various ways in which your case could be funded, such as No Win No Fee Agreement.

So why not call our specialist lawyers today for your FREE CASE REVIEW on our free helpline number 020 3551 8500 or email us on enquiries@mwsolicitors.co.uk

An Inheritance Act claim is pursued under a piece of legislation called the Inheritance (Provision for Family & Dependants) Act 1975.

What does that mean?

It means that so long as you fall within a category of claimants that are entitled to bring a claim against an estate and you can show that it was unreasonable for the deceased’s Will (or intestate estate) not to make provision for you (or that it was unreasonable for you to receive the amount that you did i.e. you deserved more) then the Court has the power to entirely re-distribute the deceased’s estate to make provision for you and do what is just.

So does that mean that I could get the whole estate?

Yes in theory it does. The Court is obligated to consider a number of factors under the legislation- these are called the section 3 factors and they are outlined in more detail below- when deciding whether what you receive under the Will (or Intestacy) was unreasonable and if it decides it was unreasonable how much you should get instead. This could result in the whole estate coming to you plus your legal costs being paid by the beneficiaries who defended your claim all the way to trial (so that the legal costs don’t eat into your inheritance).

So what are the Section 3 Factors?

• Section 3(1)(a) Your Financial Needs and Resources- i.e. whether you have a need for provision from the estate. This is not only limited to what you currently need to cover any deficit between your outgoings and income but also factors in any future financial needs you may have, particularly if you have young dependant children, a disabled child or you are disabled yourself (see further on this below).

• Section 3(1)(b) The Financial Needs and Resources of Another Claimant- this is rarely relevant but the Court will weigh your needs against those of any other person who seeks to bring an Inheritance Act claim against the estate.

• Section 3(1)(c) The Financial Needs and Resources of the Defendants (i.e. the Beneficiaries)- this will only be taken into account by the Court if the Defendants plead that they are in financial need. If they don’t because, for example, they have good jobs or savings/investments etc. then this factor will weigh in your favour.

• Section 3(1)(d) &(g) Any obligation or responsibility that the Deceased owed to any party and any relevant conduct (of the Deceased or the parties)- these factors are often considered together by the Court and they focus on any promises which the deceased made to provide for you, any financial dependency you had upon the deceased providing for you and any natural relationship which gives rise to an obligation/responsibility for the deceased to provide for you (e.g. spouses have natural obligations to provide for each other as does a parent to a minor child).

• Section 3(1)(e) The Size and Nature of the Estate- this is where the Court considers if the estate is large enough to make provision for you (as well as the beneficiaries if they deem that necessary) and whether the estate is comprised of assets which are capable of making an award in your favour (i.e. is there a house which a beneficiary lives in and which would need to be sold in order to pay you an award).

• Section 3(1)(f) Any Physical or Mental Disabilities of the Parties- this is where the Court will consider any disabilities (whether physical or mental) of any of the parties which impact their ability to improve their financial position in the future.

The Court will weigh up each factor deciding whether it is in your favour or the defendants and if they weigh the factors in your favour overall then an award will be made. The Court will then reconsider your financial position, including future financial needs, when calculating what the award should be and it has a wide discretion as to how much this can be and in what form so long as (for non-spousal claimants) it meets the maintenance standard- i.e. what is required for your maintenance now and into the future. This could be a lump sum or a periodical payment (like maintenance).

In order to achieve a clean break the Court will often order that you have a lump sum and as you will have won your case you will then be entitled to your costs on top of that award either payable from the remainder of the estate after payment of your award or payable from the defendants personally so as not to decrease your inheritance award.

Who Can Make a Claim Under the Act?

There are 6 categories of claimant under the Inheritance Act, as follows:-

  1. A Spouse / Civil Partner - In particular, spouses should bear in mind that the Court will adopt an even more lenient approach to valuing their claim than for other claimants because they are not limited to what is required for their maintenance and the Court will award you what it considers reasonable in all the circumstances. The starting point is often HALF OF THE ESTATE for spouses, as it is on divorce, but can be considerably more as on death there is only “one mouth to feed” rather than two on divorce. Recent changes in the law has also made it clear that the provision which a spouse could have expected on divorce should not be considered an upper or lower limit.

  2. A Former Spouse - who has not remarried

  3. A Co-Habiting Partner - this is defined as someone who had been in a romantic relationship with the deceased and who had been living with them in the same household for at least the 2 years immediately preceding the death. The definitions of a romantic relationship and living in the same household have been interpreted widely by the Court to include non-sexual relationships and households which comprise more than one property with partners sharing their time between more than one property or spending part of their week apart.

  4. A Child  - whether adult or minor

  5. A Child of the Family - this includes a Step-Child but also those treated as a child of the family who are not Step-Children, such as grandchildren raised as the child of the family of their grandparents, and due to recent changes in the law it also now includes step-children from marriages which had ended at the time of death and single step parent families)

  6. A Financial Dependant - this is someone who doesn’t fall into any of the above categories and who was being financially maintained by the deceased.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including those who feel that they have been left out of a Will.  Our specialist Team of Inheritance Dispute Solicitors have experience dealing with all aspects of inheritance disputes and are here to give you the legal advice you deserve.

If you are unsure of which category you qualify under or if you are in any doubt regarding any aspect of an inheritance claim call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk to arrange a FREE CASE REVIEW.

There are various grounds which can be used to challenge the validity of a Will.

However, before the Court will look at those grounds you need to overcome an initial hurdle which is to prove that you are in a class of “disappointed beneficiary” who has suffered a loss as a result of the last Will.

The First Hurdle - A Disappointed Beneficiary

A “disappointed beneficiary” is someone who received more under an earlier Will than under the last Will or someone who would have benefitted under the intestacy rules if the last Will had not been executed and the deceased had therefore been deemed to have died intestate.

If you benefit under an earlier Will but it is not the Will which immediately pre-dates the last Will then you would need to successfully challenge more than one Will in order to get back to the position where “your Will” would be declared the last valid Will and be put through probate. It can be hard to succeed upon a claim against one Will so a claim against more than one Will is even more difficult, however in order for us to assess whether your claim is one worth pursuing we need to complete a case review.

The Second Hurdle - The Grounds of Challenge

Once you have overcome the first hurdle, you then need to convince the Court that one of the following grounds applies to the deceased’s Will so that the Will is effectively “unsafe”. If the Court agrees then it will declare the last Will invalid and the Will which immediately pre-dated it will be declared the last valid Will. If there was no Will which pre-dated the last Will then the intestacy rules will apply (for details of those rules click here.

Claimants should bear in mind that with claims challenging the validity of Wills the burden of proof lies upon them so that the Court starts with a presumption that the Will was valid and the Claimant needs to put forward sufficient convincing evidence to the contrary for the claim to succeed.

Lack of Testamentary Capacity

To succeed on this ground the Court needs to be convinced that the deceased lacked sufficient testamentary capacity to execute their Will. This ground will inevitably rely upon medical evidence as the Court will only be able to assess this with the help of the deceased’s medical records and the evidence of an expert on testamentary capacity. This often means that claims pursuing this ground are expensive as experts’ fees can run into thousands of pounds.

Whilst a diagnosis of conditions such as Alzheimer’s/Dementia can be useful evidence of lack of testamentary capacity it will not be conclusive as sufferers of such conditions can have lucid moments during which time the Court may be satisfied there was sufficient testamentary capacity to execute a Will. Equally, testators may have suffered from a condition which wouldn’t, on the face of it, be considered to be one which would impact their mental faculties but the evidence may show that the combination of medications or a deterioration in the condition meant that they lacked testamentary capacity at the relevant time- i.e. when instructions were given and the Will was signed.

Undue Influence

To succeed on this ground the Court needs to be convinced that the deceased’s will was overborne by pressure from another person to sign the Will despite knowing that its contents did not contain their testamentary wishes. It is not sufficient to show that the deceased’s mind had been influenced by feelings of affection or dislike towards a claimant as the test is one of undue influence and not merely influence.

This ground can be difficult to succeed upon due to its inability to rely upon medical evidence as much as for the lack of testamentary capacity ground. The main evidence relied upon for this ground is often witness evidence from those who witnessed pressure being placed upon the deceased.

Want of Knowledge and Approval

To succeed on this ground the Court needs to be convinced that the deceased did not know or approve what they were signing when they signed the Will. This can either be that they didn’t realise that they were signing a Will or even if they did that they didn’t know the contents (i.e. they may have thought it contained clauses from a previous draft, for example).

This ground can be difficult to succeed upon when a solicitor is involved in preparing the Will and they give evidence to say that they either read the Will to the deceased or the deceased read it personally before signing.

We Can Help

At MW, our Mission is "To make quality legal services accessible to everyone" including those people who need to challenge a Will.  If you are unsure whether your case would be likely to succeed on this ground then call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk to arrange your FREE CASE REVIEW.

We often find that when investigating inheritance claims evidence comes to light which shows that a gift or transfer (usually of a property) took place before the deceased’s death but the validity of the gift/transfer is in question either because:

• It was made at a time when the deceased lacked capacity or was being unduly influenced; and/or

• It appears to have been made in an attempt to defeat a Claimant bringing a claim against the estate after death (usually because the asset is of a significant value and thus its gift/transfer reduces the value o f the estate against which a claim would be made to a negligible amount).

However, just because the asset has been gifted/transferred out of the deceased’s estate during their lifetime does not mean that that is the end of the matter and our specialist inheritance lawyers are experienced in bringing claims to set aside the gift/transfer and thus call the value of the asset back into the estate.

As with claims challenging the validity of a Will, these claims will often include medical evidence if there is a concern as to the deceased’s capacity to make the gift/transfer. However, the position is different with this claim as compared to challenges to the validity of a Will as there is a presumption in the Claimant’s favour (i.e. that the transfer/gift was invalid) if undue influence is alleged.

These claims are often fact-specific so please call or email our specialist inheritance lawyers today for a FREE CASE REVIEW so that we can advise you of the options available in your circumstances.

Can I claim my share of a property without being (correctly) represented on the title?

We often find that there is a lot of cross-over between inheritance claims and claims which our clients pursue to obtain a legal interest in a property which they have contributed to financially or which they have been promised and they have detrimentally relied upon those promises. These claims will often also seek an order for sale of a property as well as seeking to define a person’s correct beneficial interest in it.

These claims are referred to as TOLATA Claims (Trusts of Land and Appointment of Trustees Act 1996 Claims) but also incorporate claims for proprietary estoppel, a resulting trust or a constructive trust. What these claims essentially do is to correct the injustice of circumstances where a person’s contribution to a property is not correctly reflected on the legal title or in a legal deed as well as seeking the recognition of the Court for promises made for someone to benefit from property upon which they have detrimentally relied.

We are specialists in pursuing such claims and often find that pursuing such claims, as well as “back-up” inheritance claims, can be a very powerful tool in achieving a just result for our clients.
This type of claim is often fact-specific so please call or email our specialist inheritance lawyers today for a FREE CASE REVIEW so that we can advise you of the options available in your individual circumstance.

We Can Help

We are specialists in pursuing such claims and often find that pursuing such claims, as well as “back-up” inheritance claims, can be a very powerful tool in achieving a just result for our clients.

This type of claim is often fact-specific so please call or email our specialist inheritance lawyers today for a FREE CASE REVIEW so that we can advise you of the options available in your individual circumstance.

Are you an executor who has reached deadlock with your co-executor and you don’t know how to break through this in order to complete the administration of the estate?

Are you an executor who has a difficult beneficiary who is preventing you from completing the administration of the estate?

Are you a beneficiary who feels that you are not being kept informed by the executor and/or that they are not administering the estate correctly?

We frequently act for both executors and beneficiaries when disputes arise which prevent the completion of the administration of the estate. We have considerable experience in:

  • breaking through dead-locks between co-executors
  • breaking through dead-locks between executors and beneficiaries
  • pursuing claims to remove executors who have acted in breach of their duties and replacing them with executors who comply with their duties to complete the administration of the estate.

These cases can be funded on a deferred funding basis which means that you would not need to find monies for legal costs up front.

We Can Help

At MW, our mission is to make quality legal services accessible to everyone including those people in dispute with executors or beneficiaries. 

These disputes are always varied and often case-specific, if you are in any doubt call our specialist inheritance lawyers today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk for a FREE CASE REVIEW.

 What is ADR?

ADR stands for Alternative Dispute Resolution and it is a growing trend in the modern legal climate for parties to be encouraged to use methods of ADR to attempt to resolve their claims before (and hopefully without the need to) go to trial. In fact the Courts in recent cases have gone as far as telling parties that they should always attempt ADR before going to trial unless there is a very good reason not to, otherwise the Court will make costs orders against those parties who refused or ignored an invitation to enter into ADR.

Mediation is the most well-known form of ADR

You may have experienced a form of mediation if you have ever been involved in a divorce.

However, mediation of civil claims is a different type of mediation which you attend with a lawyer present. You do not not need to sit in a room with your opponent if you don’t want to and the process is entirely voluntary, meaning if the parties agree to it then it is often a good indication that they want to resolve matters without the need for a trial.

Our specialist inheritance lawyers are keen advocates of the mediation process as we have found it to be hugely successful in resolving these claims- in fact our success rate at mediation is around 98%. We have considerable experience and expertise in the mediation process gained from successful mediations for our clients over many years. We find that inheritance claims can often be more emotional than other areas of litigation and we understand that and work with you in making the process as pain-free as possible for you. We understand that our clients would often prefer mediation over taking the case to trial because it offers them the chance to obtain justice without needing to step into the witness box to give difficult evidence which airs their family’s dirty laundry in open court.

Are there Other Benefits to Mediation?

The benefits of mediation for inheritance claims also extend to:

  1. saving the considerable additional costs of proceeding to trial, which are often ordered to be paid from the estate thus leaving the parties with little if anything left to have fought over; and

  2. offering an opportunity for the parties to attempt to build bridges when this is unlikely to be possible at a contested trial; and

  3. the terms of settlement agreed at mediation being entirely up to the parties as it is a voluntary process so this means we often incorporate terms for our clients which simply would not be open to a judge to order as he wouldn’t have the power to do so. We frequently find that those terms include division of items of sentimental value (including access to loved one’s graves/ashes) which is of considerable non-financial benefit to our clients and so enables them to move on from their difficult dispute and finally grieve for the loss of their loved one.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including those people who have inheritance claims they would like mediating.  If you would like to take advantage of our FREE CASE REVIEW or just want to talk to one of our specialist inheritance dispute solicitors then call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

 

There are various ways in which inheritance claims can be funded including not only privately funding the costs up front but also:

 

Deferred Private Funding

 

Payment of the costs would be made from your inheritance at the conclusion of the case if we aren’t able to recover the costs from the other side.

 

Insurance

 

sometimes you will have insurance contained on your existing insurance policies (such as household or car insurance) which would cover an inheritance claim. This means your insurers would pay our legal costs. However, often your insurers will try to force you into using one of their selected solicitors who are unlikely to be specialist inheritance lawyers and they may therefore not achieve the best result for your case. You should therefore call or email us for a FREE CASE REVIEW if you think you may have insurance to cover an inheritance claim so that we can liaise with your insurers to force them to pay our legal costs and thus allow you to choose us as your specialist inheritance lawyers.

 

No Win No Fee Agreement

This is an agreement whereby we only get paid if we succeed on your claim (when we also then recover a success fee) and if we don’t succeed then we waive our legal costs. Changes in the government’s rules surrounding no win no fee agreements (which came into force in April 2013) have made these agreements more complicated so call or email us today for your FREE CASE REVIEW and we will be happy to explain how these agreements work.

 

Damages Based Agreement

We are now able to offer this type of agreement as a result of the government changes to funding in April 2013. This agreement is also contingent upon our succeeding on your case (as for a no win no fee agreement) but in this circumstance we would recover a percentage of your award rather than our base costs plus success fee. Call or email us today for your FREE CASE REVIEW and we will be happy to explain how these agreements work.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" and not just those who can afford it.  If you are considering challenging a will or any other type of inheritance dispute and are worried about your ability to pay fees, call our team of experienced inheritance solicitors today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

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