Challenges to wills are becoming more common. This increases the danger to will writers of contentious probate actions being brought against them by the estate or disappointed beneficiaries for loss. Some useful tips to help avoid challenges are set out below. [Read more…]
Undue influence is an equitable doctrine that involves one person taking advantage of a position of influence over another person. It is a method to attack the validity of both lifetime gifts and wills and is becoming more common.
The courts have taken different approaches when dealing with undue influence in the context of wills and lifetime gifts. It is easier to make a successful claim for undue influence in respect of a lifetime transaction because a presumption of undue influence often exists, but this is not the case in relation to gifts by will.
Undue Influence – Lifetime Gifts
There is a presumption of undue influence for lifetime gifts where there is a relationship of trust and confidence and also a transaction which calls for an explanation.
When faced with a disputed will, there are a number of important points to bear in mind before you decide whether or not to challenge a will.
- Think carefully about the consequences of challenging a will
If you are considering challenging the validity of a will, it is vital at the outset to consider if any benefit would be derived from an order declaring the will is invalid.
If the court declares that a will is invalid, the last previous valid will takes effect. If there is no previous valid will in existence, the estate would be distributed in accordance with the intestacy rules.Clearly, there is no point spending costs proving a will is invalid if no (significant) gain would be obtained from doing so.
- Understand the importance of a Larke v Nugus statement
If it is alleged that there are suspicious circumstances surrounding the making of a will, it is important at the outset to obtain evidence of those circumstances.
If the will was professionally drafted, you can contact the solicitor and ask for the details. Client confidentiality is not an issue. The request is for a Larke v Nugus statement.
In 1959, the Law Society issued guidance stating that there is an obligation on a solicitor who prepares a will to provide a statement relating to its execution and the circumstances relating to its preparation, regardless of client confidentiality. This was confirmed by the Court of Appeal case of Larke v Nugus (1979).
BHW Solicitors are pleased to announce that Paul Davis, a solicitor in the firm’s Dispute Resolution department, has been appointed as an Associate Member of The Association of Contentious Trust and Probate Specialists (ACTAPS) and becomes one of only a handful of ACTAPS Members in the East Midlands.
Only solicitors and barristers who have specialist expertise in disputed wills, Inheritance Act claims, estate administration and contested probates are admitted to ACTAPS. Additionally all ACTAPS Associate Members must undergo 2 years of specialised training. The prestigious association allows solicitors who specialise in contentious trust and probate work to liaise and share their experience and knowledge.
ACTAPS provides a code of conduct which all members must comply with. The code is designed to ensure that contentious probate matters are dealt with in a manner which attempts to avoid protracted litigation.
Speaking of his appointment, Paul said: “I am immensely proud to be appointed as an Associate Member of ACTAPS, which is widely recognised as the blue-ribbon standard for lawyers specialising in contentious trust and probate work. As an Associate Member of ACTAPS, our clients can be assured of my expertise in this complicated area of law”.
BHW Solicitors’ Managing Partner, Nick Bridle, also commented: “Paul’s hard work over the last two years in gaining membership of ACTAPS is an excellent accomplishment for both him and our firm and recognises the specialist service we provide.”
If you would like to discuss a contentious probate matter then Paul can be contacted on 0116 281 6231 or by email at firstname.lastname@example.org
There are occasions when it may be desirable to make an application to court to remove or replace a personal representative. For example, a personal representative’s conduct may be preventing the proper administration of the estate.
The court has power to remove personal representatives under the following statutory provisions:
- Section 116 of the Senior Courts Act 1981.
- Section 50 of the Administration of Justice Act 1985.
- Section 1 of the Judicial Trustees Act 1896.
- Section 41 of the Trustee Act 1925.
The two most widely used provisions are Section 116 of the Senior Courts Act 1981 (which is used to remove a personal representative prior to the taking of a Grant of Probate) and Section 50 of the Administration of Justice Act 1985 (which is generally used to remove a personal representative after the Grant of Probate has been taken out).