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
personal liability.
At this practice I do not have a department which either draws wills or acts in the administration of estates but I can recommend our clients to colleagues in a neighbouring firm with whom I work closely and who are specialists in this field.
Contested Probate
Quite often a family member feels aggrieved because he or she has not acquired any benefit under the will of a parent or relative or even a spouse. Sometimes he or she may believe that the testator was not of sound mind when the will was made.
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'.
Undue Influence
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 challenged.
Inheritance Act Claims
Under the Inheritance (Provision for Family and Dependants) Act 1976 certain persons may claim financial provision from an estate of a person who has died while domiciled in England and Wales. Such claims for financial provision may be brought by a spouse, children and certain other persons including a former spouse, cohabitee or mistress who can show that they were financially dependant on the deceased. The court can order financial provision that is reasonable in the circumstances by the transfer of cash or property to the claimant from the deceased person's assets. Orders can apply to some trusts and lifetime gifts. Claims should be brought within six months of the issue of the grant of representation to the estate.
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.
Specialist advice
This
is an area of law which is of particular interest to me in this
practice and in which I have an unusual amount of experience.
Ursula Bagnall has successfully represented both claimants and
Defendants in a number of contested probate actions and Inheritance
Claims throughout her career as both barrister and solicitor.
In a case of particular evidential difficulty she represented
an elderly client who had been subjected to undue influence
and persuaded to make a Lifetime Gift of her home to her son.
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