Contested will, trust and estate claims guide

Inheritance Act claims

What is the Inheritance Act 1975?

The Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’) allows certain people to claim financial provision from an estate. It is a legal act of Parliament which allows certain people to make a claim from a deceased person’s estate.

If you would like to find out more information on this area you can visit the Inheritance Act Claims webpage.

Who can claim under Inheritance Act 1975?

You can make an Inheritance Act claim if you were:

• the spouse or civil partner of the deceased;
• the former spouse or civil partner of the deceased who has not remarried or formed a new civil partnership;
• in a relationship with the deceased for at least two years before their death;
• the deceased’s child (which includes an adult child);
• treated as the deceased’s child, for example if you were adopted, fostered, a step-child or close grandchild; or
• being maintained financially in any away by the deceased.

If you would like to find out more information on this area you can visit the Inheritance Act Claims webpage.

Contentious Probate

What is contentious probate?

Contentious probate is any dispute relating to a deceased person’s estate (probate). Whether you are involved in a dispute over the value of estate assets, the interpretation of a will or will dispute, an executor dealing with feuding beneficiaries or need to know how to remove an executor, we can help.

Are there any time limits for a contentious probate claim?

Time limits differ depending on the specific type of claim. Generally, probate claims must usually be brought within 12 years from the date a person becomes entitled to a share of the estate. However, in some cases these time limits can be considerably shorter so the key is to act quickly.

How can I remove an executor?

How to remove an executor generally depends on whether the application is being made before or after the grant of probate or letters of administration have been granted.

Assuming you can’t remove an executor by agreement (in our experience many executors will agree to be removed without the need to go to court), generally speaking before a grant of probate or letters of administration have been granted the most common way to remove an executor is by an application to the probate registry under section116 Senior Courts Act 1981.

After the grant of probate or letters of administration have been obtained, an application to the High Court is usually necessary to remove an executor, under section 50 Administration of Justice Act 1985.

For more information, please read our blog post ‘How to remove an executor‘

What are the grounds for removing an executor?

There are numerous grounds to remove an executor. The following can give automatic grounds to remove an executor:

• death;
• where they have remained outside of the UK for more than 12 months; or
• where, whether through some disability or otherwise, they are unable to act.

Otherwise, the grounds to remove an executor can include the following:

• refusal to act;
• where they are unfit to act, for example favouring one beneficiary over another, having previously been convicted of fraud, having acted in breach of their duties or contrary to the terms of the will, having profited from their role (see our blog on self-dealing for more information) or otherwise
• acted in a way which is contrary to the best interests of the estate and its beneficiaries;
• unanimous agreement between all relevant parties;
• where the executor(s) and beneficiaries simply do not get on; or
• any other reason which calls into question the executor’s suitability.

What information am I entitled to receive about an estate?

Beneficiaries are generally entitled to request and be provided with estate accounts or accounts showing their entitlement and interest. In many cases a beneficiary should also be provided with a copy of the will.

If you have an executor refusing to provide estate accounts then you may be able to make an application to court for an “inventory and account” requiring the executor to provide an itemised list of all assets in the estate, as well as an account of their dealings with those assets and their actions.

Trust disputes

What is a trust dispute?

A trust dispute is any dispute relating to the administration or validity of a trust. Whether you are involved in a dispute over the value of trust assets, the interpretation of a trust or trust dispute, a trustee dealing with feuding beneficiaries or need to know how to remove a trustee, we can help.

What are the grounds for removing a trustee?

The grounds to remove a trustee can be many and varied. The following can give automatic grounds to remove a trustee:

• death;
• where they have remained outside of the UK for more than 12 months (in the case of onshore trusts or trusts governed by the law of England and Wales); or
• where, whether through some disability or otherwise, they are unable to act.

Otherwise, the grounds to remove a trustee may include the following:

• refusal to act;
• unfit to act, for example by favouring one beneficiary over another, having previously been convicted of fraud, having acted in breach of their duties or contrary to the terms of the trust, having profited from their role (see our blog on self-dealing for more information) or otherwise acted in
• a way which is contrary to the best interests of the trust and its beneficiaries;
• unanimous agreement between all relevant parties;
• where the trustee(s) and beneficiaries simply do not get on; or
• any other reason which calls into question the trustee’s suitability.

What information am I entitled to receive about a trust?

Beneficiaries are generally entitled to request and be provided with trust accounts or accounts showing their entitlement and interest. In many cases a beneficiary should also be provided with a copy of the trust deed.

How much information a beneficiary is entitled to will often depend upon their entitlement or “interest” in that trust.

If you have a trustee refusing to provide trust accounts or other information then it is possible to make an application for an inventory and account which requires the trustee to provide an itemised list of all assets in the trust as well as an account of their dealings with those assets and their actions.

What is a trust?

A trust is a legal concept under which legal title to assets originally belonging to a person (known as the settlor) are transferred to another person, persons or corporation (known as the trustee) for the benefit of a third party (known as the beneficiary).

Trusts are recognised in most common law jurisdictions such as England and Wales and the Channel Islands.

People create trusts for a variety of reasons including to safeguard assets for loved ones, a part of their general tax planning or to achieve certain objectives or purposes.

What is a trustee?

A trustee is the person or corporation tasked with administering the trust for the benefit of the beneficiaries.

A trustee therefore has certain powers and duties (often set out in the trust deed and legislation) and must generally strike a fair balance between the beneficiaries whilst also ensuring that they preserve and maximise the value of the trust.

Although trustees will usually hold the legal title to assets, they do so on behalf of the beneficiaries.

Trustees can usually bring and defend legal proceedings on behalf of the trust.

What is a beneficiary?

A beneficiary is a person who is entitled to benefit under a trust. They can call on the trustees to take certain steps and to account for their dealings with the trust and its assets.

Where trustees are not acting in accordance with their duties they can be held to account and sued by the beneficiaries.

What is a settlor?

A settlor is the person who creates the trust and whose assets generally comprise the trust, at least on its inception.

What is a protector?

Protectors are usually seen in offshore and higher value discretionary trusts and are people who are tasked with overseeing the trustees’ administration of the trust and exercise of discretion. They are usually appointed by the settlor.

Protectors may sometimes have the power to add and remove trustees.

Court of Protection disputes

How quickly can you resolve my Court of Protection dispute?

Each case is unique and so how quickly your case might be resolved depends on the particular circumstances. However, with one of the largest Court of Protection Disputes teams in the UK with over 50 years’ combined experience in dealing with Court of Protection disputes, and with recognised leaders in the field, we pride ourselves on being able to resolve your dispute as quickly as possible.

How do you remove an attorney?

An attorney is someone who has been chosen by a person, known as the donor, to deal with their affairs, usually, though not always, in the event that the donor loses mental capacity. Since 1 October 2007, a person can appoint an attorney under a Lasting Power of Attorney. Before then, attorneys were appointed under an Enduring Power of Attorney.

Attorneys can be appointed to act jointly or severally (i.e. together or individually) and can either deal with a person’s property and financial affairs, health and welfare or both

Under the Mental Capacity Act 2005, it is possible to apply to the Court of Protection to remove an attorney or deputy.

How to remove an attorney depends on whether or not the donor retains mental capacity. If the donor has mental capacity then they can simply revoke the power of attorney.

If the donor has lost capacity then you need to apply to the Court of Protection to remove an attorney.

How do you remove a deputy?

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone, known as the protected party, who lacks the mental capacity to make those decisions for themselves.

Deputies can deal with a person’s property and financial affairs, health and welfare or both. Their powers and duties are set out in the Mental Capacity Act 2005, related guidance and any orders made by the Court of Protection.

As to how to remove a deputy where there is a dispute, this requires an application to the Court of Protection to revoke their appointment.

The Court of Protection must be satisfied that the deputy has behaved, is behaving or proposes to behave in a way that breaches their authority or is otherwise not in the best interests of the protected party.

What are the grounds to remove an attorney or deputy?

Examples of behaviour which often warrants an application to revoke a power of attorney or remove a deputy are:

1. a failure to keep proper accounts or financial records;
2. where joint attorneys are unable to work together;
3. where the attorney or deputy has authorised large gifts to be made out of the person’s funds (see ‘How can I challenge gifts made by an attorney or deputy? below’); or
4. where they are clearly not acting in the person’s best interests.

We have significant experience in dealing with Court of Protection disputes which may arise over the appointment or removal of a deputy or attorney.

Whether you are the proposed deputy or attorney facing a challenge or you have concerns about the person who is intending to become, or is already, a deputy or attorney, our team of solicitors are on hand to offer you legal advice and guidance.

How can I challenge gifts made by an attorney or deputy?

Assuming the attorney or deputy is unwilling or unable to revoke the gifts then an application to the Court of Protection to set aside the gifts may be needed.

Alternatively, if you are an attorney or deputy who has made gifts which are now being challenged it is possible to apply to the Court of Protection for retrospective approval.

Funeral and burial disputes

Who owns a body after death?

A body is not capable of being owned. However, the responsibility to dispose of the body depends on whether or not there was a will and, if so, its terms.

Where there is a will, the responsibility to dispose of the body falls to the executors named in the will in the first instance. After that, the responsibility would pass to any residuary beneficiaries named in the will.

However, where the deceased didn’t leave a will, the person with the greatest right to take out a grant of letters of administration can take possession of the body. The hierarchy, set out in rule 22 of the Non-Contentious Probate Rules 1987, is as follows:

1. the surviving husband or wife;
2. the children of the deceased and grandchildren in the case of a deceased child;
3. the mother and father of the deceased;
4. blood-related brothers and sisters, and niece or nephew in the case of a deceased sibling;
5. grandparents; and
6. blood-related uncles and aunts and cousins in the case of a deceased uncle or aunt.

What happens if there’s a dispute about where a body should be buried or a dispute about where to scatter the ashes?

When the family or loved ones can’t agree about where to bury a body, scatter the ashes or generally about the funeral arrangements, the court can be asked to make the decision and impose different arrangements

While court proceedings should be a last resort, often these disputes need to be determined quickly, especially where one party has already taken steps to make arrangements for the funeral, burial or disposal of the ashes. As such, seeking legal advice at the earliest opportunity is crucial.

When asked to determine a dispute, the court will usually consider the following factors:

1. the deceased’s wishes;
2. the reasonable requirements and wishes of family and friends who are left to grieve;
3. the place the deceased was most closely connected with; and
4. ensuring that the body is disposed of with respect and without delay.

The last of these factors is the one on which the court usually places most weight in making its decision.

Where can I find out more information on funeral and burial disputes?

Read our article for more information on funeral and burial disputes, here.

Proprietary estoppel and equitable claims

What is proprietary estoppel?

Proprietary estoppel is a legal remedy to enforce a broken promise. To prove proprietary estoppel you must show four things:

• a promise made by one person to another;
• reliance upon the promise; and
• loss suffered by the person when the promise is broken, known as “detriment”.

What constitutes each of these depends very much on the individual circumstances of the case. For example, a promise in a commercial transaction may need to be evidenced by a written contract, whereas a promise between two people in relation to the farming of land may be by words alone.

We have a proven track record in dealing with proprietary estoppel cases both without court proceedings and going to trial.

We represented the successful claimant in the highly publicised case of Davies & Another v Davies [2016] EWCA Civ 463 involving farmland estimated to be worth approximately £7.5m.

What is an equitable claim?

Equity, literally meaning fairness or justness, arose as a legal concept in England and Wales in response to a need to achieve a remedy in cases for which there was no set law, for instance, where parties had entered into an agreement not covered by a written contract.

A claim in equity – an equitable claim – is therefore any claim where there is no set remedy i.e. by reference to a contract, deed or legislation. It therefore includes claims to enforce broken promises (proprietary estoppel), claims to recover assets wrongfully held by a third party (resulting trust claims) or claims for a share in property or an asset where there has been some prior agreement, for instance through a course of dealings over a number of years (constructive trusts).

What is a resulting trust?

A resulting trust is a legal relationship in which one person, known as a resulting trustee, is the legal owner of an asset but on behalf of another person. For example if a parent lends their child money to buy a house without a written agreement, the child holds the house, or a share of it, on “resulting trust” for the parent. If, when asked, the child then refuses to give the parent their share, the parent is able to bring a resulting trust claim to seek their share.

Our team of specialist solicitors has significant experience in dealing with resulting trust claims and have a proven track record in recovering property for people.

What is a constructive trust?

A constructive trust is where one or more people have been wrongfully deprived of their property or assets. This can be when another person has wrongfully or unfairly received assets, known as “unjust enrichment”, or, for instance, where the common intention between two or more parties is not reflected by the legal ownership of an asset. That is particularly common in the context of the family home.

Unjust enrichment can occur in a number of situations, for instance if one person has received property belonging to another for which they have not paid anything.

A constructive trust can arise, for instance, if a couple buy a home together and one of them spends a significant amount of time and money in renovating the house. That person may be able to claim an increased share of the home in the event of a separation.

See our blog on a case involving a dispute over the family home.

Our solicitors can advise you on your case whether you are looking to bring or defend a constructive trust claim.