Will, Trust & Estate Disputes

Disputes over wills, trusts and estates can be particularly difficult for families to navigate. With an aging population, increased reliance on family wealth and alternative family structures, inheritance disputes are increasingly common. Sensitive and timely advice is required to avoid conflict wherever possible and to implement cost effective, pragmatic solutions.

Our Will, Trust & Estate Disputes team has experience acting for individuals, families, executors, and trustees in resolving a wide range of contentious estates, including those which are high net worth or complex. We have expertise in dealing with trusts and estates that involve rural property and those that have assets located in different countries or multiple jurisdictions, and we work very closely with our non-contentious colleagues in our wider Probate team, our Wills, Estate & Tax Planning team, and our Tax & Trust Management team.

We will always look to minimise litigation risk and resolve disputes using mediation or other Alternative Dispute Resolution (ADR) methods wherever possible. Where necessary, we have an extensive track record of success in the courts of England & Wales.

Our contentious probate lawyers can help with:

• Will disputes
• Trust disputes
• Inheritance (Provision for Family and Dependants) Act 1975 claims
• Disputes with Personal Representatives (Executors/Administrators) and Trustees.

Will disputes

It can be a hugely emotional and challenging time when a close relative or friend dies. These difficult circumstances can be made all the more testing when, as is often the case, that person dies leaving no will (this is known as an “intestacy”), or they leave behind a will that arises suspicion, does not seem to reflect their true wishes, or is simply not as you would have anticipated.

If you find yourself in this situation, there are a number of potential routes and remedies that may be available to you. Although litigation can be a very effective means of resolving disputes, it is not always the case that you would need to go to Court, and with legal assistance these issues can often be resolved in an amicable and successful manner without recourse to formal proceedings.

We have extensive expertise in this area, and we will give you honest, practical advice about the merits of your case and how best to go about securing the outcome you want.

In addition, we work closely with our specialist Wills, Estate & Tax Planning team, and we advise on preventative measures that can be taken by clients to try to avoid such disputes.

What kind of will disputes can arise?

Disputes in relation to wills can arise for a variety of reasons:

• A will cannot be found
• You think the will you found is wrong
• You are not sure if the will is valid
• There are doubts about whether the person who made the will (testator) had the mental capacity to create such an important document
• There are doubts about whether the testator knew and approved the will
• There is a suspicion that others influenced the decisions of the person making the will
• There is a suspicion the will has been forged or planted after the testator’s death
• The will is unclear due to the will writer’s mistake or a clerical error.

Our expert will dispute lawyers can assist people in all of the above circumstances. We act for those wishing to contest a will and those wishing to prove that the will is valid (i.e. wishing to propound the will). We represent beneficiaries in disputes, and those who are named in the will as executors. We also act as independent administrators in cases where executors need to be removed and the estate administered by someone entirely separate from the beneficiaries.

When can you challenge a will?

A will may be challenged for a variety of reasons, for example there may be concerns as to its legal validity, whether a later will exists, the construction or interpretation of the will is unclear, or the terms of the will itself are defective.

While challenges to the legal validity of a will have no formal limitation period, claims are best pursued as soon as possible, and preferably before a grant of representation is made, as prospects can be severely reduced where distribution has already taken place.

Some claims carry very short deadlines (such as 6 months from the grant of representation) so it is best that specialist advice is taken. Alternative claims, such as those under the Inheritance (Provision for Family and Dependants) Act 1975 – which also have a 6 month deadline – may be pursued in conjunction.

How can you challenge a will?

Will challenges are generally pursued by application to the Chancery Division of the High Court, either to rule for or against a will’s validity, settle an issue relating to the interpretation of a will, or rectify a mistake contained in it.

Formal proceedings may be avoided where the relevant beneficiaries are in agreement, and not every application will be contentious (for example where there may be agreement, but the Court is required to consent on behalf of minors, unborn children or those lacking capacity).

What can I do if I suspect a will is invalid?

Steps should be taken to investigate the position as a matter of priority, and legal advice on possible claims sought. A copy of the will and any previous testamentary documents will need to be obtained, however this may be resisted. It is likely that formal steps will need to be taken at an early opportunity to intervene in the administration and prevent the estate from being exhausted before the claim is resolved.

How much does it cost to challenge a will?

Claims involving disputed wills are necessarily fact specific and the costs differ greatly, depending on the complexity and volume of documentation, as well as the availability and quality of evidence needed. In some cases, expert witnesses (e.g. on testamentary capacity or on handwriting) may be required. In general, it is best to view costs on a phase-by-phase basis and bear in mind that compromise may be possible at any stage.

Initial advice

Advice will need to be sought at an early stage alongside gathering evidence. For example, in the case of claims involving testamentary capacity, medical notes are likely to form crucial evidence and it will generally be necessary to obtain notes from any relevant will drafter or witnesses.

Pre-Action correspondence

Parties will then engage in the exchange of information (usually by letter of claim and response) to narrow down the issues in dispute. This will help shape the prospects of the claim and whether any consensual outcomes are likely to be possible.

ADR

Once the issues in dispute are appropriately narrowed down, the parties might agree to engage in alternative dispute resolution in an attempt to avoid the costs, stress and delay of formal court proceedings. Most cases settle in this manner, without the claim being heard by a court.

If that is not possible, or the specific claim requires the determination of the court, then an application or claim will need to be issued. The costs will include disbursements (expenses) such as court fees and potentially the instruction of a barrister at certain points in the court timetable, as well as the possible need for expert witnesses.

Costs

In the case of will disputes, costs are at the discretion of the court. The usual rule is that the loser pays a contribution towards the winner’s costs, however there are many factors which a court can take into account and circumstances can arise, or be engineered, to give rise to different cost consequences (for example the placing of a settlement offer in an appropriate format). Advice should be taken in each case.
In some cases, we may be prepared to share or take on the costs risk with you. We can also explore 3rd party litigation funding with you, and insurance against the possibility of having to meet an opponent’s costs if the case is lost.

Trust disputes

A trust is a legal arrangement whereby one or more people (trustees) hold assets for the benefit of other people (beneficiaries). Those assets are often property or other investments.

A trust is created by the settlor who transfers his or her own assets to the trustees, specifying how and for whom those assets can be used and what powers the trustees have. A trust can be created during the settlor’s lifetime, but can also be set up in his/her will (in which case the “settlor” is known as the “testator”).

There are many different types of trust, e.g. bare trusts, interest in possession trusts, discretionary trusts, accumulation trusts, settlor-interested trusts and non-resident trusts.

The law can also deem that a trust exists, even where no trust document exists. For example, a constructive trust arises where someone buys property and holds that property in his/her sole name, but for someone else (e.g. someone who has contributed in some way).

Why do trust disputes occur?

Trust disputes arise in a number of contexts, not all of which are actively contentious, including:

• Breach of trust and removal of trustees
• Disputes about trustee powers and duties
• Claims against the validity of a trust, including mistake
• Disclosure of trust documents and accounts
• Applications to vary a trust or for directions of the court
• Disputes between trustees or with beneficiaries
• Third party claims or attacks upon the trust (for example upon the divorce of a beneficiary)
• Negligent legal or tax advice when the trust was set up.

Decisions on whether trustees should get involved in disputes and how they should pursue them carry potentially serious personal cost consequences for trustees. Our team has experience in dealing with disputes in all of the above circumstances and many more.

We also work closely with our specialist Wills, Estate & Tax Planning team, and with our Trust Management team, and advise on preventative measures that can be taken by clients to try to avoid trust disputes.

What are the grounds for contesting a trust?

There are many different circumstances in which a trust may be challenged. There may be a claim against the formal validity of the trust (for example the settlor lacked capacity or the trust was a sham trust) or perhaps challenges relating to the administration and distribution of the trust, including decisions taken by trustees about how they have exercised their discretion, claims for breach of trust, trustee removals and accounts.

What happens if trustees disagree?

Generally, trustees must act unanimously. If trustees cannot agree on a matter which involves exercising their discretion, then an application for directions from the Court may be appropriate. Where a trustee is unwilling to act, however, or the trust administration is jeopardised, it may be necessary to consider removal of a trustee or replacement/substitution.

What can I do if I don’t agree with the terms of a trust?

If there are concerns over the terms of a trust, there may be grounds for an application to the Court for:

1. Construction of the document where the language is ambiguous or unclear
2. Rectification where there may be an error in the terms of the trust
3. An application to set aside the document on the grounds of mistake.

What can I do if a trustee isn’t acting as they should?

Trustees are in a fiduciary position and have extensive obligations to the beneficiaries of the trust. In the event that they are not fulfilling their duties, or are acting in breach, they may be personally liable to compensate the trust, provide accounts for their actions or face removal from the trust.

Inheritance (Provision for Family and Dependants) Act 1975 claims

In England and Wales, an individual can leave their wealth to whomever they wish. However, if inadequate financial provision has been made for a spouse, children or dependants, they may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (often simply referred to as “the 1975 Act” or “the Inheritance Act”).

Claims can be costly and very damaging to family relationships. There are strict time limits that apply to 1975 Act claims. Claims can only be brought in relation to estates of those domiciled in England and Wales. Also there are only certain categories of people who can claim.

We will help you at every step of the way on this technically and emotionally challenging journey.

We often act in cases involving children, or vulnerable individuals. We have experience in dealing with cases for both claimants and defendants. We can also represent executors caught up in such disputes. We can assist with making a claim, but also when proceedings are threatened or issued. We will always assess and advise you about the chances of success of the claim and consider the best tactical approach to the matter, before you embark on the court process.

Who can make a claim under the Inheritance Act?

Under section 1(1) of the Inheritance (Provision for Family and Dependants) Act 1975, only the following categories of claimant can apply for reasonable financial provision:

1. A spouse or civil partner
2. A former spouse or civil partner
3. A cohabitee
4. A child of the deceased (including adult children)
5. Someone treated as a child of the deceased
6. Someone being maintained by the deceased.

How long do you have to make a claim under the Inheritance Act?

Claims under the Inheritance Act must be issued within 6 months of the date that the Grant of Probate or Letters of Administration.

While it may be possible to seek the Court’s permission to issue a claim beyond the 6 month period where there is good reason, permission is at the discretion of the Court. We have experience in negotiating suitable arrangements with opponents where we or they are seeking longer to investigate or pursue a claim, perhaps where there is a will challenge claim to be investigated too, in to avoid the need for urgent court proceedings to be issued.

What can I do if I have been left out of a will?

Disappointed beneficiaries who may have been left out of a will should seek advice on whether they qualify to bring a claim under the Inheritance Act as a matter of priority. It is important that advice is sought as soon as possible in the event that a Grant of Representation has been issued already.

Disputes with personal representatives (executors/administrators) and trustees

Where an executor (or administrator) or trustee fails to perform his or her duties with care and skill, or in a timely manner, disputes can arise. Beneficiaries will want to ensure that their interests are being properly safeguarded and that they can hold those in control to account during the administration process.

What is the role of an executor/administrator?

Put simply, the role of an executor or administrator is to collect in and administer the estate according to law, and under the terms of the will or intestacy rules, for the benefit of the beneficiaries.

The duties of a personal representative are far reaching, and disputes can arise at any stage of the administration process. Complaints frequently come from beneficiaries of the estate, however disputes can also arise between co-executors who are unable to agree or progress the administration. There may also be questions as to the suitability or neutrality of an executor / administrator who is also a beneficiary, or concerns that estate assets are being mismanaged or sold at an undervalue.

While the scope for conflict is broad, common causes of action include:

• Undue delay to the administration process
• Failing to keep or provide clear and accurate accounts
• Disagreements relating to the sale of estate property
• Breach of duty or conflict of interest
• Wasting of assets
• Disputes between executors
• Removal of executors
• Interpretation or construction of the will’s terms.

What is the role of a trustee?

Trustees receive assets from an individual (the settlor) and hold those assets “on trust” for the benefit of persons usually set out formally in a trust document (the beneficiaries). Their primary obligation is to ensure the welfare of the beneficiaries and to protect the trust fund.

In contrast to personal representatives, trustees can take up appointment either during an individual’s lifetime (under a lifetime trust) or upon their death under the terms of their will (a will trust). Often, personal representatives will also be appointed as trustees under a will. Those roles are similar, but carry distinct duties.

A trustee may be a professional, or someone with no prior experience. Disputes can arise between the beneficiaries of a trust, or within the trust itself (i.e. between co-trustees). Common claims can include:

• Access to trust accounts and other documentation
• Trustees’ expenditure
• Claims against trustees for breach of trust
• Failing to act in accordance with the terms of the trust
• Mismanagement of trust property or causing loss to the trust
• Failure to act with impartiality
• Applications for the removal of trustees.

Let our highly experienced Probate and Will, Trust & Estate Disputes teams help minimise the stress for you at a difficult time. We offer a wide range of options, depending on how much support you need.

As one of the largest teams of probate and contentious probate lawyers in Kent and the South East, we have a vast depth and breadth of experience and combine sensitivity with a practical approach to dealing with even the most complicated of issues. Our award winning team specialises in administering complex, high and ultra-high net worth estates, as well as estates with agricultural and business assets.

If problems arise, our highly regarded Will, Trust & Estate Disputes lawyers help resolve issues as quickly and cost effectively as possible. We can also draw on expertise from our Wills, Estate & Tax Planning, Tax Management and Residential Property & Conveyancing teams as needed.

Our probate experts also have a great deal of experience in working on international estates and the complexities involved here and have a trusted network of overseas lawyers we work with regularly.

We also have specific expertise in dealing with unusual assets and holding structures. In addition, our team can assist with heritage assets and reliefs, conditional exemption and offers in lieu of tax.

We understand what it means to lose someone and that each estate is unique. This is why we offer a bespoke service, delivering support tailored to your individual needs at this difficult time.

• Full estate administration: We will deal with each aspect of the probate process, so you are not burdened with the responsibility
• Executor support service: You choose which parts of the process you want to carry out yourself and which parts you would like to hand over to our probate experts
• Grant-only service: We apply for the Grant of Representation on your behalf, enabling you to do the rest of the work yourself
• Independent Administration: A service for estates where those involved in administering an estate feel that they can go no further with the process and require an Independent Administrator to be appointed to resolve the issue.

Our probate questionnaire can help identify the type of help you may need.