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We are all advised to make a will, and to put our affairs in order so that there’s no dispute about our estate when we die. But even the best-laid plans can go wrong. Disputes about wills, trusts and inheritance are all too common, particularly at a time when family relationships are more complex than ever before. You may have concerns about the way executors or others are handling an estate or you might be considering contesting a will. We understand that disagreements in this area are often stressful for everyone involved. We therefore employ a range of tactics, including informal negotiation and mediation to sensitively resolve disputes where possible. We also have the experience to robustly represent you and – if needed – issue court proceedings to ensure the best result.

We understand that many of our clients will be recently bereaved and sometimes elderly. We never underestimate the vulnerability of their position when we provide advice and develop a strategy for how to pursue a particular claim.

Frequently asked questions

What is Contentious Probate?

Probate and estate administration are the catch-all terms for everything related to dealing with a deceased person’s estate – whether or not there is a will. A lot of the probate work we do is unproblematic. Contentious probate refers to work resulting from any kind of dispute that arises during the probate process. Is there a doubt over the meaning of the will for example? Or is someone unhappy with what they are set to inherit? Maybe there are questions over the circumstances in which the will was executed.

Wills disputes and disputes over inheritance under the intestacy rules (where there’s no will) are on the increase. Family relationships are more complex, estates are larger due to the increase in the value of key assets like houses, and there is a much greater public awareness of the ability to challenge a will. In addition, many people decide to draft their own wills that may not stand up to scrutiny of the probate authorities

Who can make a claim against an estate?

The Inheritance Act 1975 lists categories of individuals who can make a claim for financial provision from an estate. These include spouses and former spouses or civil partners, children and individuals who the deceased supported financially. Claims under the Act have become more common in recent years but to be successful significant legal tests must be satisfied. It is imperative that you get legal advice as soon as possible if you think you have a claim under the Inheritance Act 1975 as claims must be brought within six months of the date of the Grant of Probate or Letters of Administration.

Who can challenge a Will?

Certain family members, including spouses, civil partners and children as well as cohabitees may contest the validity of a Will. A person mentioned in the will (or in a previously revoked Will or someone who would otherwise benefit from the estate under the intestacy rules) can also challenge the contents of a will, provided there are sufficiently strong grounds to do so.

I was promised something by the deceased. Can I claim from the estate?

Very possibly. You may have grounds to bring a claim under the legal doctrine of proprietary estoppel. You’ll need to prove that the deceased promised you that the land or property in question would come to you, that you based crucial decisions on the promise, and that you suffered some loss by relying on the promise.

If there is no Will can we challenge the way the estate is divided?

When the deceased leaves no will, strict intestacy rules apply to the division of the estate. Even though there’s no will to challenge, an individual may be able to bring a claim under The Inheritance Act, so long as they meet the Act’s criteria. So, for example, an individual whom the deceased treated as a child (with financial and other support) will not benefit under the intestacy rules. But he or she may be able to bring a successful claim for financial provision from the estate under The Inheritance Act.

Can we change the executors?

Executors have several important obligations. They:

  • Must divide the estate in accordance with the terms of the will or the law of intestacy
  • Owe a duty of care to beneficiaries to treat them all fairly and not to favour one beneficiary over another
  • Must have no conflict of interest with the beneficiaries or with any aspect of the estate
  • Cannot profit from their role as executors (unless payment for their work is provided for in the will)
  • Must administer the Estate in a timely manner

If beneficiaries believe an executor is not fulfilling these duties they can ask the court to remove them. Similarly, where there is no will and administrators are tasked with dealing with the estate, they too can be removed by the court if the beneficiaries establish sufficient grounds.

Will my case end up in Court?

Not necessarily. At DMH Stallard we are skilled at negotiation and all forms of alternative dispute resolution. We’ll try and settle matters before court proceedings begin or before litigation goes too far. However, if an agreement is not possible there may be no option but to mount formal legal proceedings if it is agreed with our client that this is the best way forward. Naturally we will always discuss every option with our client so that they fully understand the implications of any decision they make.

Whatever the course of action at DMH Stallard we will also discuss the options available (including any risks and the costs consequences) and agree the best course of action. We understand that there may be other factors at play, for example preserving family relationships, and will provide advice and options based on the whole picture.

How long will it take to resolve a Wills and probate dispute?

This will vary depending on the complexity of the claim and the response received from the other side. Some cases can be resolved relatively quickly. Others however can take longer to finalise. At DMH Stallard our goal is to reach a resolution you are happy with as efficiently as possible. We’ll work hard to resolve your case speedily but we won’t jeopardise your position in any way by settling matters prematurely.

Who will pay the costs of my claim?

If you are successful, some if not all of your costs could be met from either the other side or the estate. However, all costs awards are at the discretion of the court and are not guaranteed.

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Izzy Fitzgerald

Recent work

Defending a charitable legacy

Under the deceased’s will the bulk of the estate was left to charity. Members of the deceased’s family argued that the deceased had promised them that they would inherit certain property. They said this was a long-standing family agreement and the family members had relied on the promise made in a verbal agreement to their detriment. On behalf of the charity our team argued that the family members had not met the requirements to bring a successful claim of this nature (called proprietary estoppel). In particular they hadn’t proved the existence of the long-standing family agreement. Our team also protected the reputation of the charity who were keen to avoid any adverse public reactions or negative press coverage.

Resolving a trustee dispute

The deceased’s will set up a fairly standard trust. On his death his spouse was to benefit from the trust during her lifetime. When she died, her surviving children were to be equal beneficiaries. During the administration of the trust, the trustees could not agree on any decisions regarding the trust fund. DMH Stallard was approached to act as an independent trustee (a trustee that is appointed to act as an objective decision maker for the trust). Despite challenges to our appointment, we were able to negotiate an agreement so that court proceedings were avoided and our appointment went ahead. The revised trust has been signed, the trust funds have been received and the trust is being administered successfully.

Finding agreement to avoid court costs

We acted for the executor of a will and the will’s main beneficiary. They faced a claim by members of the deceased’s family that the will was invalid. They claimed it had not been correctly witnessed, that the signature did not match the deceased’s usual signature, and that the deceased suffered from a dementia-type illness. We challenged these claims by getting access to the deceased’s medical records, the file the person who had prepared the will had kept and a Lasting Power of Attorney made by the deceased. We negotiated an acceptable settlement ensuring that all parties avoided the risks and costs associated with full-blown litigation.

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