Probate Litigation

Probate Litigation can be notoriously expensive and time consuming. Our aim is always to strive to resolve probate disputes speedily, cost-effectively and where possible out of court. We can assist executors, trustees or beneficiaries involved in disputes or legal proceedings (both commencing and defending) related to contested probate.

There are 4 common areas of probate dispute.

Pre-death issues

If a person dies intestate (i.e. without leaving a valid Will) this could mean that their partner receives less, or that the money and assets go to family members they did not intend to receive it or that they end up paying more Inheritance Tax than necessary.

KBL can assist both executors and beneficiaries who face:

• Disputes resulting from lifetime transactions
• Allegations of Undue Influence and setting aside lifetime transactions
• Disputes about jointly owned properties
• Claims for resulting trusts
• Issues surrounding Powers of Attorney
• Court of Protection / Mental Capacity Act 2005 claims

Disputes about Wills

Even where a person has made a Will, arguments can flair up amongst family members where emotions are running high and relationships are under strain. Disputes can occur between beneficiaries (those entitled to receive a legacy) and executors (those who administer the estate after death).  For example, a Will could be challenged in Court in the following circumstances:

• The Will was made under duress (i.e. under pressure from a third party)
• The deceased did not have mental capacity at the time of making the Will
• There is a technical defect with the Will, such as it not being executed properly
• Negligently drafted Will
• The Will was found damaged or torn
• Promises of legacies made by the deceased outside the scope of the Will

Grant of Probate disputes

Once a person dies having left a Will it is necessary to locate it so that a grant of probate can be obtained and the estate duly distributed in accordance with the terms of the Will. These steps can be problematic and complicated for the executor in the following circumstances:

• The original Will is lost or destroyed
• The Will is in the possession of someone who refuses to release it
• Where a Caveat has been entered
• Where assets are held abroad
• Threat of legal action against those seeking to obtain a grant of probate

Equally, beneficiaries or persons with an interest in an estate may wish to ‘freeze’ the granting of probate so that a particular dispute or issue can be investigated.

Disputes about the administration of the estate

A person can appoint up to four people in a Will to act as executor. Although executors should remain neutral, there is potential for disputes to arise between themselves and the beneficiaries during the administration of an estate. KBL has experience in advising clients concerning disputes between executors and beneficiaries.

We have particular expertise in advising both regional and national charities in this specialist technical area of law. Some recent examples of cases dealt with by KBL are outlined below:

The Civil Procedure Rules (CPR)1998 govern all civil procedure in England and Wales. Parts 57 (Probate and Inheritance) and Part 64 (Estates, Trusts and Charities) deal with court proceedings and claims concerning probate, Wills, executors, the Inheritance (Provision for Family and Dependants) Act 1975 and the administration of estates of deceased persons. For further information on the CPR follow the links below:

• CPR 57: http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part57.htm
• CPR 64: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part64

The Government and the Law Society have also published guidance on probate.