It's becoming more and more common to see disputes over inheritance. In 2019, 188 cases of challenging Wills reached the High Court, a dramatic increase of 47% from cases in 2018. In fact, it is now estimated that 3 in 4 people are likely to encounter such a dispute within their lifetimes. It is more important than ever therefore to be aware of the grounds upon which a Will may be challenged.
On what grounds can I challenge a Will?
There are several grounds for challenging a Will, with the most common being the following:
- Lack of testamentary capacity (the testator does not have the necessary mental capacity to make a Will)
- Want of due execution (the Will has not been executed properly; for example, it has not been witnessed by two people or has not been signed by the testator)
- Want of knowledge and approval (the testator does not know and approve the contents of the Will)
- Undue influence (the testator has been coerced by someone to execute or change a Will against the testator’s true wishes)
- The Will is a forgery or is fraudulent
Alternatively, if the Will is valid but you feel that you have not been adequately provided for, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
I have not been adequately provided for in the Will, what can I do?
Testamentary freedom means that anybody making a Will has the legal right to dispose of their estate in any way, and to anyone, they choose. There is no legal obligation even on a parent to leave their children anything in their Will, though this does not mean that the Will cannot be challenged.
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to bring a claim against the deceased’s estate where ‘reasonable financial provision’ has not been made for them under the terms of the Will (or on intestacy).
The following groups are eligible to make a claim against the deceased’s estate:
- A spouse or civil partner
- A former spouse/civil partner who has not re-married
- Someone who had been living with the deceased as their spouse/civil partner for two years prior to the deceased’s death
- Children of the deceased (including adult children)
- Individuals treated as children by the deceased
- Any other person being maintained by the deceased prior to their death
All applicants, other than spouses and civil partners, need to show they require reasonable financial provision for their maintenance. Spouses and civil partners only need to show that they need reasonable financial provision in all of the circumstances and have no requirement to show a need for maintenance.
When deciding whether a claim should succeed, the court will consider a number of different factors. For more information, please see our article on the Inheritance (Provision for Family and Dependants) Act 1975.
I was promised something but haven’t received it – what can I do?
If someone has made you a promise during their lifetime that you would get, for example, a specific part of their estate which you later did not receive (eg property or land), you may be able to bring a claim for ‘proprietary estoppel’. To be successful, it is important that you have relied on the promise and have suffered some form of detriment or disadvantage as a result.
Our specialist solicitors can advise you on the merits of any potential claim, the process of making such claims, and defending any claims that may have been made against you. If you need some advice on a possible proprietary estoppel matter, please get in touch as soon as possible.
How long do I have to contest a Will?
If you believe a Will is invalid, there is no time limit in which it has to be contested. A Will can even be challenged after Probate has been granted (although practically it is more difficult to do so once the assets have been distributed). However, in general the sooner a Will is contested, the higher the chance that contest will be successful.
However, if you are considering making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, there is a deadline of six months from when the Grant of Probate or Letters of Administration have been issued. It is still possible to bring a claim once the six months has elapsed, but the permission of the court is required to do so. It is therefore important to get in touch as soon as possible if you believe you may have a claim.
Can I stop a Grant of Probate being issued?
If you believe a Will is invalid, it is possible to enter a ‘caveat’, which prevents the Grant of Probate from being issued. The caveat can only be entered by somebody with an interest in the estate who is over eighteen years old. It can be renewed every six months if needed.
A caveat prevents the deceased’s estate from being administered and their assets from being distributed. The most common way to enter a caveat is online (although it can also be done by post by completing a Form PA8A). The fee for issuing a caveat is £3.00.
A caveat can be ‘warned off’, meaning it ceases to have effect. The person who entered the caveat will be notified if an attempt is made to warn it off and will then have a choice whether to enter an ‘appearance’ or allow the caveat to be removed. An appearance is a representation to the court that the person who issued the caveat continues to object to a grant of probate being issued (with the reasons why). Once the appearance has been lodged, the caveat remains in place until the parties come to an agreement or an Order from the court is made.
How can you tell if somebody lacked capacity to make a Will?
In order to have the necessary mental capacity to make a Will, the testator must:
- Know and understand the nature of a Will
- Understand the extent of the assets they are giving away under the Will
- Understand the obligations they may have to people who might have a claim upon the estate
- Not be suffering from any delusion or disorder of the mind
There is a presumption that the testator had capacity until proven otherwise. Therefore, if a person believes that a testator did not have capacity to make a Will, they must have strong evidence to show this.
Can a Will be changed after someone has died?
Yes, there is the option for the beneficiaries of a Will to execute a ‘deed of variation’. This is a document that essentially varies how the estate under a Will is to be distributed. It is only possible to vary your own entitlement under a Will – if any other beneficiaries are affected, they must agree to the variation.
A deed of variation may be executed because a beneficiary’s circumstances have changed and they no longer need their inheritance, the estate has not been shared out equally and the beneficiaries would like to alter this, or there is a more tax-efficient way for the estate to pass.
It is important to be aware that if changing a beneficiary’s share results in the estate becoming liable for more inheritance tax then the executors would also have to agree to the variation. To be retrospective for tax purposes, any deed of variation must be executed within two years of the testator’s death. It is still possible to vary a Will after two years, but the tax position will not be changed.
What happens if there is no Will?
If a person has died without leaving a Will, then they died ‘intestate’. Their estate will therefore be distributed in accordance with the intestacy rules, which are set out in statute and determine the order of entitlement between the surviving family members. Those entitled to inherit include a spouse, civil partner, children, parents, siblings etc. Cohabitees and stepchildren are not entitled to inherit under the intestacy rules. However, such groups may be able to make a claim under the Inheritance (Provision for Family & Dependants) Act 1975.
Please note, the intestacy rules only apply to assets that were capable of being disposed of via a Will. For example, assets held in trust or jointly owned property would not pass under the intestacy rules. There are other rules applicable to such assets.
I know the deceased made a Will but I can’t find it, what can I do?
If a Will cannot be found, there is a presumption that it has been destroyed by the testator and is therefore no longer valid.
However, if you are in possession of a copy of the Will and there is sufficient evidence to prove that the copy Will was in fact the deceased’s last Will and was not destroyed with an intention to be revoked, you may be able to rebut the presumption. You can apply to the Probate Registry to ‘prove’ the copy Will and have a Grant of Probate issued on the basis of the copy Will only.
If you do not hold a copy of the Will, it may be possible to ask to the court to reconstruct a Will where sufficient evidence is available of the terms of the original Will.
Our specialist solicitors can advise you on the possibility of any potential application.
What are the powers and duties of a trustee?
Anyone who agrees to act as a trustee owes the duties set out below to the beneficiaries of the trust:
- To obey the terms of the trust
- To act impartially between beneficiaries
- To invest in authorised investments
- To ensure that the trust property is vested in all the trustees’ names
- To disclose any potential conflicts of interest
- To act jointly with co-trustees
- Not to benefit from the trust
- To account to and keep the beneficiaries informed
Trustees also have various legal powers to administer a trust, the scope of which will be set out in the trust deed or otherwise prescribed by statute. The trustees must always act in the best interests of the beneficiaries.
For more information, please see our articles on Trustees – Duties and removal and Trustees’ duties and liabilities.
Can I remove a trustee?
Potentially, yes. The first step is to review the trust deed to determine who has the power to remove trustees ie the settlor, the beneficiaries etc. There are also statutory powers that enable a trustee to be removed.
The Trustee Act 1925 states that a trustee may be replaced under any of the following grounds:
- Death of the trustee
- The trustee has remained out of the UK for a period of more than 12 months
- The trustee desires to be discharged from being a trustee
- The trustee refuses or is unfit to act as a trustee
- The trustee is incapable of acting as a trustee
The trustee can therefore agree to retire from the trust.
In cases where the trustee does not consent to step down, it is possible to apply to the Court for them to be removed. The Court has a statutory power to remove a trustee where trustees cannot agree on a way forward or where a trustee has lost capacity, but the Court also has an inherent power to remove a trustee under its jurisdiction to ensure that trusts are properly administered in the beneficiaries’ best interests.
We can provide legal advice on the options available to you. For more information, please see our full article on Trustees – Duties and removal.
What information are beneficiaries of a trust entitled to see?
The trustee of a trust has a duty to account to the beneficiaries and keep them informed about the administration of the trust. Any beneficiary may therefore request to see trust deeds and relevant trust accounts – but they have no entitlement to any further documentation.
For example, beneficiaries are not entitled to see documents in relation to the trustees’ decision-making process such as trustee correspondence or minutes of trustee meetings. However, sometimes trustees will take the view that providing more information to the beneficiaries is better than providing less.
We can provide legal advice to trustees or beneficiaries in relation to duties or rights in respect of trust information disclosure.
I’m a beneficiary but disagree with the executor – what can I do?
If a beneficiary disagrees with the way an executor is administering an estate, they should try to resolve their differences as amicably as possible. If they cannot, the beneficiary can as a last resort seek to remove the executor from their role. As a warning however, the Court will generally not remove an executor simply because there is animosity between an executor and a beneficiary – the executor usually needs to have failed in their duties in some way. In fact, the Court will usually not even consider removing the executor unless the administration of the estate or the welfare of the beneficiaries is at risk.
The executor is ineffective, slow and hostile, what can I do?
If an executor is failing to take steps to administer the estate or there is unreasonable delay, there are a number of options available to you as a beneficiary or joint executor, as follows:
- Removal of the executor through mutual consent, in which the executor agrees to step down from their position (a court order would be required if the executor has taken steps to deal with the estate)
- Mediation with or without legal representatives and an impartial mediator to identify the areas of dispute and help the parties reach a legally binding agreement
- Apply to court to remove the executor
While it is possible to apply to the court to remove an executor who is failing in their role, this should be a last resort; it is not a step that should be taken lightly and is not a straightforward or cheap process. The main issue that the court will consider is whether the estate is being properly administered by the current executor.
What if the joint executors cannot agree?
If executors cannot agree how to administer the estate, it can be sensible for each executor to seek their own independent legal advice. The executors can work through their differences with the assistance of solicitors to advise how best to approach the decisions and to reach an amicable agreement.
If an agreement still cannot be reached between the parties and no executors wish to step down from their role, it may be necessary to make an application to the court to:
- Remove one or more executor
- Appoint an independent professional third-party to administer the estate
The Court often takes a pragmatic approach to these types of disagreements but also has discretion to order that the executors personally bear the costs of any such application. It is therefore important to take specialist legal advice.
Court of Protection
What is a Lasting Power of Attorney?
A Lasting Power of Attorney, or LPA, enables one or more people, known as your attorneys, to make certain decisions on your behalf. A property and financial affairs LPA allows your attorneys to make decisions about your money and property, for example, accessing your bank accounts, selling your house, paying your mortgage and bills etc. This LPA can be used while you still have capacity or when you have lost capacity.
A health and welfare LPA allows your attorneys to make decisions regarding your health and care, for example, the medical treatment you receive, where you live, and your general lifestyle. This LPA can only be used when you no longer have capacity.
An LPA can only be entered into while you still have the mental capacity to understand its meaning. Once you have lost this capacity, you can no longer enter into an LPA, and it cannot be entered into by somebody else on your behalf. It is important therefore to make sure your LPAs are in place as early as possible (and updated if necessary) to avoid this situation.
It is important to take specialist legal advice to make sure that your LPA is valid and specific to your needs.
Can I challenge a Power of Attorney?
A person who has made a Lasting Power of Attorney (known as the "Donor") may choose to list "people to be notified" when the LPA is registered. If they choose to do so, each person to be notified will be informed by the Office of the Public Guardian (OPG) that the Donor has registered their LPA, and they may then choose to object to the LPA being registered within three weeks of being notified.
Even if you are not named as a person to notify, if you believe an LPA is being abused, you may make a complaint to the OPG using their concern raising form. The OPG may then carry out an investigation into the attorney and may potentially cancel the LPA.
An attorney can no longer act if they have lost capacity themselves, they have been declared bankrupt (if they are acting as an attorney for property and financial affairs), or they have been married to the donor and have since been divorced from them.
We can provide specialist legal advice in relation to challenging LPAs.
I no longer wish to be an attorney – what can I do?
Acting as an attorney for somebody who has lost capacity is a serious and significant responsibility. If you find that you no longer wish to undertake this role, it is possible to disclaim your appointment, although it is important to note that disclaiming your role is irreversible so you must consider the welfare of the Donor carefully before you disclaim.
It is good practice to speak to the Office of the Public Guardian (OPG) or a solicitor to make sure the Donor will not be left vulnerable following your disclaimer. If there is no one named as a replacement attorney in the Lasting Power of Attorney (LPA), then the LPA itself may become invalid and the Donor will no longer have anyone to act for them.
If you would like to proceed with disclaiming, you need to complete a form LPA005 and notify the Donor that you are disclaiming by sending them the original LPA005, and a copy of the form to any other attorneys who act with you, or the replacement attorneys if there are any. Once these forms have been sent to the Donor and/or any other attorneys, a copy of the form must be sent to the OPG, along with any copies of the LPA that you have in your possession.
We can provide specialist legal advice to attorneys in relation to disclaiming their role.
I don’t agree with my co-attorney – what can I do?
There is no limit to how many attorneys may be appointed by a Lasting Power of Attorney although it is usually good practice to have between one and four to minimise the risks of disagreement. If, however, a disagreement does arise, it is important to know what your options are.
The Donor will have decided whether they would prefer for their attorneys to act jointly (they must all unanimously agree on every decision) or severally (attorneys can make decisions by themselves, even if not all the attorneys agree). It is best to try and get agreement from all attorneys, even when the attorneys are appointed to act severally.
However, if a disagreement does arise, there are options that are open to you to resolve this.
- You might try and negotiate with each other and come to an agreement amicably and without involving any third parties, such as a solicitor or the court. It is important to remember that you are all working towards the same goal – the best interests of the Donor.
- You might seek specialist legal advice, particularly if you disagree over the powers or role of an attorney. Once you are aware of the correct way to proceed from a legal perspective, it may assist you with coming to an agreement.
- You might apply to the Court for directions. This should only be considered once negotiation has failed and you have taken specialist legal advice.
- You might apply to remove one or more of the other attorneys
Body and funeral disputes
Who decides what happens to the deceased’s body?
No person can own a body so it is not possible for the deceased’s body to be gifted to a particular person to dispose of.
Where the deceased has left a will, the executors are the trustees of the deceased’s body upon death and have a broad discretion to decide what happens to it. The executors may determine whether the deceased’s body is to be cremated or buried, even if the family members object. The executor should however be guided by any wishes that the deceased set out in the Will itself or in any Letter of Wishes.
If the deceased did not leave a will, this responsibility falls to the person who has priority to administer the estate under the intestacy rules.
There is disagreement about what happens to the deceased’s body, what can I do?
Where there is a dispute among executors or between an executor and a family member, they should try to resolve their differences as amicably as possible. The executor’s decision, however, takes precedence and is final.
If a compromise cannot be reached (or if the Will itself is subject to challenge), the parties can apply to the court to determine who is entitled to decide how the deceased’s body is disposed of. Each case will turn on its own facts. It is therefore important to take specialist legal advice.