DMH Stallard are contentious probate specialists with decades of experience in putting inheritance disputes right
We’re 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. Disagreements over wills are stressful. We therefore employ a range of tactics, including informal negotiation and mediation to sensitively resolve disputes where possible. We also have the experience and gravitas to robustly represent you and if needed issue court proceedings to ensure the best result.
If you are thinking about contesting a will or have other concerns about the way executors or others are handling an estate, contact our contentious probate team online or by phone on 03333 231 580.
What is contentious probate?
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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.
What can our wills disputes lawyers do for you?
Our team handles a wide range of contentious probate matters, from relatively straightforward disputes that can be resolved speedily to more complex cases involving high value estates. The main issues we assist clients with include:
- Uncertainty over terms of a will – a will must be drafted with care and precision. If the nature of a gift or the identity of a beneficiary is unclear the gift may fail and the division of assets adjusted to reflect this. A scenario like this can lead to dispute.
- Claims where inadequate or no provision has been made in a will – The Inheritance (Provision for Family and Dependants) Act 1975 entitles certain categories of individuals, including spouses, cohabitees and children of the deceased who may not be mentioned in any will to make a claim against an estate. The Inheritance Act also applies in the case of intestacy.
- Challenges to the validity of a will – On the grounds that the testator (the person who made the will) was mentally incapable of understanding its terms or was unduly influenced into signing the will. We sometimes challenge gifts made during the deceased’s lifetime on similar grounds.
- Establishing whether the will was executed in accordance with all the formal legal requirements.
- Investigating allegations that the will was executed as a result of fraud or that it is a forgery.
- Enquiring into promises the deceased made to individuals about inheritance that have not been confirmed in any will or that shall not be fulfilled under the intestacy rules.
- Investigating disputes based on allegations of negligence on the part of the solicitor who drafted the will. Does the will accord with the deceased’s instructions? Is the will invalid because of a drafting error?
- Investigating disputes connected with the ownership of property that forms part of an estate.
- Advising charities on their legal position when a family disputes the validity of a legacy or bequest made to the charitable organisation.
Our experience: 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. Relying on the promise had been 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.
Disputes about how trusts are managed
We also handle disputes about the administration of trusts. (Trusts are essentially legal instruments under which ‘trustees’ look after certain assets in the best interests of named beneficiaries.) Trusts can be set up under a will or separately from a will. Some trusts operate during the lifetime of the person who set up the trust (‘the settlor’) and others take effect on death.
In the same way families and others may challenge the terms of a will, disputes over trusts can also arise. For example:
- Trustees may argue over how to administer the trust and deal with trust assets
- Beneficiaries may object to the way trustees act
- Beneficiaries may disagree about their entitlements under the trust
- There may be questions over the interpretation of the trust deed
- Trust assets may be difficult to value
- Families may wish to remove a trustee
- Persons excluded from the trust may object to the trust entirely
Our private client solicitors advise on all aspects of trusts, including providing guidance on when they might be effective, their creation and management and how they can be wound up. We also handle all types of trust dispute.
Our experience: 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. If one of the children died before her then his or her children would inherit their deceased parent’s share of the trust.
During the administration of the trust, the trustees could not agree on any decisions regarding the trust fund, including what investments they should make. 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.
Why choose our contentious probate solicitors?
DMH Stallard is a long-established firm of solicitors with offices across the South East and a depth of experience that goes beyond many firms. We’re recognised externally as a top firm by several legal guides including the Legal 500 and Chambers and we made the top 2% of law firms in The Times Best Law Firms, 2021. Whilst our credentials as legal professionals are extremely strong, we never lose sight of the fact that our clients are our priority and we never take for granted the extremely personal nature of our work – particularly in areas like contentious probate.
Our experience: Finding agreement to avoid costs of going to court litigation
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 for several reasons. These included allegations that the will had not been correctly witnessed, that the signature on the will did not match the deceased’s usual signature, and that the deceased suffered from a dementia-type illness so was incapable of understanding what the will meant
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. The family members at the same time were able to give persuasive, first-hand accounts of shortcomings in the way the will was executed.
Ultimately we were able to negotiate an acceptable settlement with the family members, ensuring that all parties avoided the risks and costs associated with full-blown litigation.
How our contentious probate lawyers work
"A prompt, professional and efficient service from the firm as a whole. This gave me confidence …"
Contentious probate is a particularly sensitive area of law. It usually involves highly charged disputes between close family members and others. Our firm has a very clear ethos of integrity and dedication to achieving the best outcome for our clients. This is why our wills disputes team is the perfect fit for so many engaged in disruptive probate disputes.
Our contentious probate clients get access to an impressive team of lawyers across all major disciplines – lawyers who will be at your side at every stage of your case. You’re able to draw on the expertise of our dispute resolution lawyers as well as our dedicated private client team, business solicitors and probate specialists. Partners lead all our work with the support of experienced solicitors and paralegals so you’ll always receive a top quality service.
At a glance - who we help
Our contentious probate solicitors represent families, individuals, beneficiaries under a will or trust as well as executors, trustees and others involved in estate and trust administration. The cases we handle include:
- Claims under The Inheritance (Provision for Family and Dependants) Act 1975
- Validity claims (including claims involving lack of testamentary capacity, lack of formalities, knowledge and approval, undue influence and/or fraudulent calumny)
- Removal of trustees/executors
- Breach of trust and/or executor’s duties
- Statutory wills
- Deputyship orders
- Secret Trusts and Sham Trusts
- Proprietary Estoppel
- Applications to pay funds into court
- Recovering estate property
- Other Court of Protection applications, including Deprivation of Liberty Safeguards cases and personal welfare orders
- Issues relating to Trusts of Land and Appointment of Trustees Act 1996
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.
Contentious probate: what you need to know
If you are involved in a probate dispute or think one is likely to arise it’s important to get legal advice as soon as possible. You can contact the contentious probate team online or by phone on 03333 231 580 at any time. To help you we ‘ve answered below some of the most common queries we receive about contentious probate.
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 and 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:
If beneficiaries believe an executor is not fulfilling these duties they can ask the court to remove him or her. 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.
- Must divide the estate in accordance with the terms of the will
- Owe a duty of care to beneficiaries to treat all beneficiaries fairly and not to favour any individual 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)
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 with our 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.
Do I need a solicitor?
There’s nothing to stop you bringing a contentious probate claim on your own, without legal representation. The complexity of the law in this area however, coupled with strict time limits within which you must bring certain types of claim mean you would be well-advised to get some legal advice before you embark on a claim.
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.
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.
If you want to discuss an issue relating to a will dispute or other contentious probate matters please get in touch
with our team by completing our quick form. That way we can ensure the most appropriately qualified person calls you back for an exploratory, no cost discussion. Alternatively call us on 03333 231 580 and we’ll ensure you get through to someone who can help.