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…]
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).
Testamentary freedom is ingrained in UK culture and is considered an important personal freedom. No forced inheritance rules apply in contrast to most European countries.
However, the Inheritance (Provisions for Family and Dependants) Act 1975 (‘the Inheritance Act’) does significantly erode testamentary freedom. The courts have a wide discretion to redistribute assets to produce a fair result where they believe an individual has failed to make reasonable financial provision for their relatives or dependants.
Set out below is a summary of how the Inheritance Act operates.
Charles Dickens in Bleak House admirably and effectively set out the importance of costs in contentious probate claims:
“It’s about a will, and trusts under a will – or it was, once. It’s about nothing but costs now. We are always appearing, and disappearing, and swearing and interrogating, and filing, and cross-filing and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and/or his satellites, and equitably waltzing ourselves off to a dusty death, about costs. That’s the great question. All the rest by some extraordinary means, has melted away”.
I would agree that it is always vitally important to consider costs at the outset of a contentious probate matter and it is not the case that costs will simply be borne by the estate as a matter of course, which is a common misconception.
Mithram Samuel explained in a recent article that social workers evidence in court is to be given greater weight in the Court of Protection because of changes in its guidance on mental capacity assessments. Click here to read the article.
As social workers have significant involvement in the day-to-day lives of people who may be lacking in capacity, their evidence will be a useful tool for judges in determining a person’s best interests.
However, I would re-iterate the point made by the HMRC spokesperson in the article that the judge has the discretion to accept or refuse any evidence.
Paul Davis is a Solicitor at BHW Solicitors in Leicester and regularly writes on contentious probate matters. Paul can be contacted on 0116 281 6231 or by email at email@example.com.
Since the Mental Capacity Act 2005 came into force in 2007, there has been uncertainty about whether Court of Protection cases decided before the Act are still relevant.
Last month, I attended a presentation given by Senior Judge Denzil Lush for the Association of Contentious Trust and Probate Specialists (ACTAPS), which shed light on the issue. He discussed a Judgment he had recently handed down In the Matter of M on 28 January 2013. At present, this case has not yet been reported.