In some countries the law dictates
that a share of a person's estate shall be given to various
members of their family, including their spouse and children.
Similar rules apply under English law only when a person dies
without leaving a valid will. These are known as the Rules
of Intestacy. Otherwise under English Law people have complete
freedom to dispose of their estate as they wish provided they
make a valid Will.
Probate is the procedure for obtaining public recognition
of the last Will of a person who dies leaving assets in England
and Wales. It authenticates the right of the executors and
trustees named in the will to assume their roles
The administration of the estate is, in essence, the task
of identifying all assets and liabilities, paying all liabilities
including Inheritance Tax and then distributing the remaining
assets in accordance with the Will or otherwise in accordance
with the law.
While seemingly straightforward, administering an estate can
be very complex and time consuming. The task of the executors
or administrators is onerous and it is important they take
good advice to avoid mistakes and in some cases to escape
At this practice we do not have a department
which either draws wills or acts in the administration of
estates but we can recommend our clients to colleagues in
a neighbouring firm with whom we work closely and who are
specialists in this field.
Wills can be contested on a number
of grounds. The Will may lack proper formality. The testator
may have lacked capacity or knowledge and approval of what
he or she signed. The testator may have been 'unduly influenced'.
It is still not uncommon for a will
to be challenged upon the basis that the testator felt 'obliged'
to make his will in a certain way. This often happens for
instance when someone is very ill and makes a new will shortly
before they die perhaps leaving the majority of his estate
to a relative who lives nearby or to someone he has seen a
lot of just before his illness. The beneficiary may be able
to show that he or she was quite innocent of any attempt to
persuade the testator to make a new will in his favour and
that the testator acted entirely on his own initiative in
making the new will and had the capacity to do so, in which
case any claim on this ground will fail. On the other hand,
there have been many instances where the will of an elderly,
frail person made shortly before their death has been successfully
Inheritance Act Claims
These claims are often disputed by
the beneficiaries under the deceased's will and litigation
ensues. It is therefore essential for the claimant to seek
specialist advice as soon as it becomes clear that no provision
has been made for the claimant under the will.