Bereavement is difficult enough, but sometimes disputes arise regarding a Will or inheritance. We can advise regarding your position, and help you resolve the dispute, including applying to the Court if necessary.
The value of assets at stake in a dispute can be high, especially when there are valuable properties involved. There are also emotional factors following a death. Expert and sympathetic advice is required to deal with problems in a cost-effective way.
Problems should be addressed without delay as soon as they are discovered, and some applications to the Court have time limits, so it is important to obtain advice without delay.
The following examples are only some of the issues that you may encounter. For further advice, please contact Greg Randall on 020 8670 6141 or by email at [email protected].
There is no Will or the Will has been lost
“Letters of Administration” are needed to deal with the assets of someone who died without leaving a Will (“intestate”) and to distribute them to their heirs. If there is a dispute as to who should apply for Letters of Administration, we can help resolve the problem or, if necessary, apply to the Court to appoint an administrator. If a Will has been lost, we can apply to the Court putting forward evidence of its contents and for an order that this evidence be accepted in place of the missing Will.
The Will may be invalid due to a defect
A Will must comply with various statutory formalities, failing which it will be invalid. If so, we can apply to the Court for a declaration that the Will is invalid and that either the last Will made by the deceased is the true Will or, if there is no such previous Will, that the Intestacy Rules apply to the deceased’s estate.
The person making the Will was pressurised into making it
It is not unlawful for one person to persuade another person to make a Will in their favour or in favour of someone else. However, persuasion can sometimes tip over into coercion (“undue influence”). Where there has been undue influence, we can apply to the Court for a declaration that the Will is invalid and that either the last Will made by the deceased is the true Will or, if there is no such previous Will, that the Intestacy Rules apply to the deceased’s estate.
If the deceased made gifts during their lifetime due to undue influence, so that those assets are not available to be inherited under their Will, we can apply to the Court for an order that the gifts be returned to the deceased’s estate. If there was a close relationship, including a family relationship, undue influence regarding gifts made during the deceased’s lifetime may be presumed by law, so the person who received those gifts will have the burden of proving to the Court they were lawful.
The person making the Will did not have the mental capacity to do so
If it can be shown that the person who made the Will did not have the mental capacity to make their Will, we can apply to the Court for a declaration that the Will is invalid and that either the last Will made by the deceased is the true Will or, if there is no such previous Will, that the Intestacy Rules apply to the deceased’s estate.
There is a mistake in the Will, or its meaning is unclear
If a Will does not reflect the intentions of the deceased due to a mistake, we can apply to the Court for the Will to be “rectified” to give effect to the deceased’s true intentions. Note: this application must be made within 6 months of probate being granted to the deceased’s estate. Thereafter, an application can only be made with the Court’s consent.
If the wording of Will is so unclear that it is difficult to implement, or there is a disagreement as to what the deceased intended, we can apply to the Court for an Order setting out how the Will should be understood.
The person who died agreed to leave property to you, but has not done so
Sometimes an asset is promised to someone, but a Will does not give effect to this promise. If the person to whom the promise was made relied on it to their disadvantage (for example, by working in a family business without receiving a full wage on the assurance they would inherit the business), they may have a claim to the promised asset, regardless of what is stated in the Will.
The Will does not give you or somebody else enough for your or their needs
If a family member or dependant does not receive an inheritance under a Will, or what they are given leaves them without enough to meet their needs, we can apply for “reasonable provision” under the Inheritance (Provision for Family and Dependants) Act 1975.
Applications can be made on behalf of:
- a surviving spouse or civil partner
- a former spouse or civil partner who has not remarried
- a child of the deceased person. This can include an adult child
- any other person who was treated by the deceased as if they were a child of the deceased’s family. This includes stepchildren and can include adults
- any other person who was having their maintenance needs met by the deceased. This need not have been by payment of money. For example, it could include living in a home provided by the deceased for no rent or at a reduced rent
- a person who for the two years ending with the death of the deceased was living with him or her in the same household as if they were the deceased’s husband, wife or civil partner. Broadly, this covers unmarried couples, often known as “common law” spouses