Will disputes: how to contest a will

Posted on By Liz Skinner

An FT article in January 2024 blamed a ‘boom in asset prices’ and an increase in dementia for a surge in inheritance disputes reaching the Courts in England and Wales.

someone signing their last will and testament

This matched an earlier report, called the UK Inheritance Disputes Report 2022, published by IBB Law. It found that three in four people are likely to experience a will, inheritance, or probate dispute in their lifetime.

So, what causes will disputes, and how do you challenge a will?

Will disputes

Relatives might want to challenge a will for various reasons. They may feel they’ve been treated unfairly or that they’ve not received what they were promised. Often there’s a feeling of being entitled to inherit assets when someone, particularly a parent, dies.

Second marriages can cause will disputes too, when the children of the first marriage feel they’ve been treated less favourably in the will than the children of the second marriage.

There is also increased awareness about financial abuse of the elderly/vulnerable, whether that’s by a relative, friend or carer. Often this leads to will disputes, when family members find they’ve been unexpectedly cut out of someone’s will, in dubious circumstances.

Freedom of disposition

England, Wales and Northern Ireland have ‘freedom of disposition’, which means people are entitled to leave their assets, in their wills, to whoever they want. This compares with other jurisdictions, including Scotland and most European countries, where the law gives close relatives a fixed share of the estate.  

The only limit on the English freedom of disposition is something known as the 1975 Act. This allows you to bring a claim against someone’s estate if you were not left ‘reasonable’ provision in the person’s will. This claim is easier if you were married or in a registered partnership with the person who died. It can also be brought by other family members (usually children) or by anyone else who was financially dependent on the deceased.

The position is very different if someone dies without a will, known as being intestate. Here the law divides the estate between the deceased’s close family, prioritising the deceased’s spouse/registered partner and children. Otherwise, parents, siblings and cousins can potentially benefit.

How to challenge a will

There are, however, only a very limited number of grounds for challenging someone’s will and it is harder than you might think. ‘It’s not fair’ isn’t actually grounds for challenging a will.

If a 1975 Act claim isn’t possible, you can challenge a will if you believe that the person who wrote the will (the testator) didn’t have the mental capacity to do so. As the Mental Capacity Act 2005 contains an assumption of mental capacity, if you want to challenge a will on these grounds, you have to prove the testator didn’t have capacity.

An alternative challenge can be brought if the testator was being unduly influenced by someone else. This might be because they’d fallen under the influence of a carer or neighbour. The most common form of undue influence is between spouses and family members.

There are also formalities that a will must comply with, so you can bring a challenge if (for example) you think it wasn’t signed correctly. Again, you’ll have to find evidence to support your case.

You need legal advice on the process for challenging a will and evidence to support your challenge. The costs of a court application can be extremely high, and it can take years to get to court. You should see if you can discuss things between you and whoever is named as heirs in the will. Most will disputes are settled out of court.

How to avoid a challenge to your own will

The best way to avoid challenges to your own will is to a) tell your loved ones what you plan to put in your will, even if you fear it won’t be what they want to hear, and b) get a suitably qualified advisor to write it. Many will disputes arise because the person making the will didn’t let their family know what they were planning to put in their will or drafted their own will incorrectly.

Jo Summers TEP, Partner, Jurit Law

What are the STEP Standard Provisions?

Posted on By admin

If you have a will, there is a high chance that they will include mention of the ‘STEP Standard Provisions’. But what does this mean?

The STEP Standard Provisions are a set of ready-made clauses that can be inserted into a will. These clauses provide protections and powers that enable the executors or trustees to effectively deal with the estate.

Since they were first published in 1992, the STEP Standard Provisions have become an important element in the drafting of wills, with will drafters incorporating them into countless wills and settlements.

Please note that this article refers to the England and Wales STEP Standard Provisions. There are separate Provisions that cover the law of Northern Ireland.

What is the benefit of the STEP Standard Provisions?

The STEP Standard Provisions give the executors of the will a number of technical and routine provisions and powers to help them to administer the estate properly. They are written in non-technical language, avoiding legal jargon, so they are easy to understand.

Why is this relevant to me?

Your will is an important document that sets out what should happen when you die. A well-written will can provide peace of mind that your loved ones will be provided for after you’ve gone. With such an important document, it is essential that you fully understand everything contained within it.

What are the different versions?

The England and Wales STEP Standard Provisions were first published in 1992. Since then, STEP has published two new editions: the Second Edition in 2011 and the Third Edition in November 2023. The new editions recognise changes in law.

What changed in the Third Edition?

Trust and will legislation has changed since the publication of the Second Edition in 2011, so the STEP Standard Provisions needed to be updated and modernised.

The most significant amendment is the standardisation of the clauses on trust corporations, which take into account wording from the terms and conditions of trust corporations.

Do I need to change my will if they refer to an older edition?

No, you don’t need to change your will if it refers to the First or Second Edition. These editions still remain valid. You should, however, review your will periodically to make sure it remains up to date. When you do this, the edition can be updated accordingly.

How do I know if the STEP Standard Provisions have been used in my will?

If your will includes the STEP Standard Provisions, there will be a statement included as follows (or similar):

‘The Standard Provisions of the Society of Trust and Estate Practitioners (XXX Edition) shall apply’.

If any of the ‘Special Provisions’ are also included, this will be clearly stated, noting which apply.

A qualified will drafting professional should explain the STEP Standard Provisions when they draft your will. If your will includes any of the Special Provisions, each of these should be explained to you so you understand what is included and why. You can ask your will drafter for a copy of the STEP Standard Provisions when you make your will. Alternatively you can find these at www.step.org/step-standard-provisions

Who should I speak to about making/updating my will?

It is essential to think carefully about who you choose to write your will. Although anyone can write a will, there are some factors you can check that your will writer has to give you peace of mind. These include:

  • Specialist accreditations: are they a member of STEP (a full member can use the letters ‘TEP’ after their name) or a another reputable specialist body?
  • Qualifications: Do they hold any specialist qualifications such as STEP’s Advanced Certificate in Will Preparation or the STEP Diploma?
  • Have they told you who regulates them and which relevant professional bodies they are members of? Are they signed up to an ethical code?
  • How much experience do they have in this specialist area?
  • Insurance: Do they have professional indemnity insurance (PII)?
  • Terms of Business: Have they given you a contract that sets out the service they will provide for you? Are the costs transparent?
  • Complaints: Have they told you who you can complain to if something goes wrong?

You can search for a STEP member here.

I want to help my child buy a house, what do I need to consider?

Posted on By admin

The Bank of Mum and Dad – sometimes referred to as BOMAD – Is the UK’s ninth biggest lender. With recent cost of living pressures and property prices unachievable for many, thousands of young adults need help to get started with their first home. But before you hand over the money, there are some important legal and tax issues to consider.
For ease, in this article we refer to ‘Mum and Dad’, but similar issues apply for other family members, such as grandparents, aunts/uncles, etc.

Is it a loan, gift or something else?

Are you planning to offer a loan (that you expect to be repaid one day), a gift or buying a share of the property?

Buying a share in a property
If you were thinking about buying a share in a property with one of your family, think again. The extra 3% Stamp Duty (Land Tax) charge, which applies to purchases involving someone who already owns a home, makes this a very costly option. For example, buying a £300,000 house costs an extra £9,000.

Gifting money
If you can afford to make an outright gift, and don’t need the money repaid later (say) for your own retirement, you need to consider fairness to the rest of the family. Can you afford to give your other children a similar amount? If not, you may need to amend any wills or trusts to enable this.

You also need to consider the impact of tax if you make a gift. Such a gift may use up your inheritance tax allowance (called the nil-rate band) as lifetime gifts are considered ahead of your estate on death.

Loaning money

Research suggests one third of parents won’t give their children money as a gift because they fear it may be lost in a divorce.

You may therefore think a loan is a better option for many. Three issues need consideration:

(1) The lender’s requirements, if there is a mortgage:

Any bank or building society will want to ensure that no one else has an interest in this property, and that there is no other claim on the ‘equity’ in the property. They will normally ask the customer to sign a form confirming that any money received was a gift and not a loan.

If this is done, it is hard then to claim later, e.g. if there were a divorce, that this was really a loan. This points to the value of (2).

(2) A pre-nuptial (‘pre-nup’) or post-nuptial (‘post-nup’) agreement, before or after marriage

This is a very sensible, practical answer. It can work as the English courts effectively recognise pre-nups and post nups, and will normally consider them in the event of a divorce.

There are two provisos. Each party needs to make the agreement once they have had independent legal advice, based on full disclosure of financial facts. Secondly, fairness. No agreement can override a claim by a child of the marriage, and it cannot leave one party in a situation of real need.

Suggesting a pre-nup, ahead of the happy day, appears an un-romantic, negative comment on the relationship, whether driven by parents or the ‘other half’. It may, however, be possible to present this as a good package.

Parents can offer to give a sum towards the first home if tied in with a pre-nup or post nup. They can always blame the lawyers as the ones advising this is good practice! The ‘in-law’ can be reassured the same principle would apply to gifts to any of the children. It’s not a reflection on their specific relationship!

There are two lessons from storylines in the Radio 4 soap, The Archers. Firstly, don’t suggest this on the eve of a wedding, as (apart from bad timing) it must be signed at least 28 days ahead. It’s important an individual isn’t under duress. Secondly, don’t offer financial help and then later suggest a pre-nup. It is far better as one offer!

(3) What about using a trust?

You may wish to consider putting your gift into a trust, which then either:

• Owns the property, if the whole thing is bought, or a share in it; or
• Makes a loan.

Apart from the same issues above in making a loan, two issues need addressing. Firstly, the 3% extra Stamp Duty charge (see above) applies to most trusts, though in some cases careful planning might make a work around possible.

Secondly, divorce will create problems. The divorce court may look through the trust, assume the full value is available to the child and make an order allowing for that resource.

Trusts are increasingly vulnerable on divorce. Depending on the full circumstances and the detailed documentation, a little protection may be possible.

A simple declaration of trust, of different property shares reflecting contributions made, is of limited value. It often gets overlooked later and is essentially irrelevant as between married couples.

Other tax issues arising for these arrangements include:

• Inheritance tax: it’s good to set the ‘seven-year clock’, for surviving a lifetime gift, running, but take care on details, and

• Capital Gains Tax (CGT) and the [crucial] main residence exemption.

Conclusion: While a pre-nup (or post-nup) may be right for some, the key thing is to take specific advice (ideally from a STEP member with relevant expertise) on the details of your situation. Be clear about what you are trying to achieve, and any concerns you have, and find a solution that works for you.

John D. Bunker, TEP CTA Consultant Solicitor & Chartered Tax Advisor; and Hayley Trim, Family Law Partner.

Probate v confirmation: a comparison of the English and Scottish procedures for executors

Posted on By Joanna Pegum
train leaving Scotland for England

If you are the executor for a friend or relative’s estate, there are some substantial differences to consider, depending whether the estate is in England or Scotland.

The differences reflect the different legal traditions in the two jurisdictions – common law in England, which originated in the Ecclesiastical courts of the Middle Ages, and civil law in Scotland.

Different terms are used

Different terms are also used. The document the court issues for the executors is called probate in England where there is a will; and confirmation in Scotland, whether or not there is a will.

In Scotland, the person who handles the estate is always called an executor. If they are appointed in a will, they are an executor nominate; where there is no will, an executor dative; but both kinds of executor need to seek a grant of confirmation.

Sometimes the Scottish and English terms are different even though they are describing essentially the same thing. The English say real and personal property, while the Scots say heritable and moveable; the English say life interest and remainder, while the Scots say liferent and fee; and the English say administration of estates, while the Scots say executry administration.

What are the real differences?

In England, probate tells the world that the executors named in it are entitled to deal with the assets of the estate because they are named in the will.

In Scotland, confirmation effectively transfers the estate assets to the executors so they can administer them, subject to the terms of the will. Scottish executors step into the shoes of the deceased person (in a legal sense), and they (and only they) can deal with the person’s assets and enforce their rights, for example calling in any debts the estate is owed.

When executors in Scotland apply for confirmation, which uses a form called C1, they must include a complete list of the deceased’s assets in the UK, together with their values. Along with the will, this becomes a public document when lodged in court.

This is not required in England, where the only information that is public is the total value of the estate, both gross and net.

In Scotland, the Sheriff Court issues confirmation, which is a copy of Form C1 with the court order attached to it. The court issues certificates of confirmation so executors can send the confirmation to all asset holders simultaneously. Unlike the office copies of probate, issued in England, these are specific to each asset, and include a description and value as stated in Form C1.

Both probate and confirmation were well established long before estate duty (or inheritance tax) was introduced, and they double up as a tax return for the estate assets.

What happens if other assets are discovered later on?

In England, a person or organisation receiving an office copy of probate has no way of knowing how the gross value of the estate was made up, or what value was given for their asset. Because of this, English executors can deal relatively easily with additional assets that may come to light later, though of course they are required to report them to HMRC where inheritance tax  is payable.

In Scotland, however, executors will usually need to apply to the court for an eik (a Scots word for an addition) or supplementary confirmation, which details the additional assets. Executors need to report all applications for an eik to HMRC before the Sheriff Court will accept them, even if no tax is payable and the original Form C1 did not have to go to HMRC.

Occasionally executors can deal with additional assets of lower value without the need for an eik, but they generally have to inform HMRC, and may be required to produce written evidence that they have done so.

Will this hold things up?

If English executors omit or undervalue an asset in the probate application and the inheritance tax form, which is known as IHT400, they will still be able to deal with the assets by producing the original grant of probate or an office copy.

Scottish executors who omit details of an asset will not be able to deal with it until they have told HMRC and obtained an eik to confirmation.

The Scottish requirement to include a list of all the estate assets in Form C1 makes it simpler in cases where inheritance tax needs to be paid. In England, the IHT400 and supplementary forms request exact details of the estate assets, and English executors have to complete all the forms in full.

As Scottish executors have already set out all the assets and values in Form C1, HMRC accepts inheritance tax returns which simply show the total value for each category of asset, and can refer to Form C1 for the detail.

Your advisor will be able to help you through this process.

Ian Macdonald TEP is Head of Private Client at Wright Johnston & Mackenzie, Glasgow.

‘One day, all this will be yours’: passing on the family farm

Posted on By Joanna Pegum
farmer and cows in countryside

It can be a very proud moment for a parent to look around a farm and to say to their child, ‘one day, all this will be yours’.

Family farms are often passed from one generation to the next and the value of land means that farms can have a considerable value, even if at the time cash is tight. Often two or three generations of the same family work together on the same farm.

But sometimes, unexpected things happen: parents get divorced and remarry, or family arguments drive a wedge between parent and child. In these circumstances, a parent may change their mind and make a new will, leaving property in different shares or, perhaps, leaving it to a new partner.

Can I change my will?

Anyone is generally free to change a will at any time. When making a will under English and Welsh law, a person is entitled to be capricious, whimsical or unfair if they wish to act in that way. Sometimes a new will is made just to reflect a change in circumstances.

An individual is perfectly free to make a promise to leave a property to someone – only to change their mind later. This situation is quite common.

So what’s different for family farms?

Family farms, however, face a unique situation when it comes to owners changing their minds. For example, a property-owning farmer may say to his daughter: ‘one day, all this will be yours’. He promises this on many occasions over a long period of time, and so the daughter continues to work on the family farm and turns down opportunities to work elsewhere (perhaps for a higher wage). This encourages her to stay working on the farm for a low salary precisely because one day the family farm will become hers.

If the farmer later decides to change his mind, this starts to stray into a more complicated legal situation.

If a property owner makes a promise to someone (for example to leave them the farm), and that person relies on that promise and acts to their detriment (for example by turning down the opportunity to work elsewhere for a higher wage), then the property owner can be held to that promise – even if they make a will to the contrary.

This legal principle is known by the slightly unusual word ‘estoppel’.

Sadly, there have been numerous recent cases that have gone all the way to trial in precisely these circumstances: a property-owning farmer has made a promise to leave the farm to a particular beneficiary, only to change their mind later. These are some of the saddest cases to come to court, since they reflect a tragic breakdown of family circumstances.

Try to resolve things amicably

If you find yourself in this situation and promises have been made and then broken, a good lawyer should take steps to try to resolve any family dispute amicably, without the worry, risk and expense of a trial.

Many people embark on a process of mediation in the hope that a family relationship can be salvaged and the work of the farm can continue. Statistically, mediations have a very high prospect of success: in the region of 85 per cent of cases referred to meditation settle, with considerable benefit for family members so that they can meet again around a kitchen table rather than at in court.

Don’t make promises you can’t keep

The best defence, however, is to avoid this sort of situation arising in the first place. It may be tempting as a short-term fix to offer to leave a farm to one beneficiary, rather than to someone else. Sometimes these promises are made on the spur of the moment or in the heat of an argument. These promises can, however, have serious consequences for the future of the farm. In short, promises should never be made unless they can be kept.

Stephen Lawson TEP is a Partner and Head of Litigation at FDR Law LLP, Frodsham, UK

Can the gifts I made during my lifetime be challenged after my death?

Posted on By Joanna Pegum
gift in the post

Making lifetime gifts to reduce the value of your estate on death for inheritance tax purposes is a useful way to preserve wealth down the generations.

HMRC allows a variety of exemptions including an annual allowance of £3,000, gifts worth less than £250, wedding gifts, gifts to help with living costs, and gifts from surplus income. Gifts between spouses, gifts to charity and some gifts to political parties are also exempt. Any gifts that do not qualify for these exemptions are known as Potentially Exempt Transfers (PETs) and will affect the donor’s nil-rate-band if the donor dies within seven years. If the value of any PETs made in the last seven years of life is above the value of the nil-rate-band, then the recipient is liable for the inheritance tax due on the gift. It is therefore important to take tax and legal advice before making gifts.

Earlier gifts

When you die, the gifts that you made during your lifetime can be called into account on distribution of the estate by including a ‘hotchpot’ clause in your will. This clause will direct the executors, before distributing the estate, to take into account any gifts you made during your lifetime (from the date of the will or a specified earlier date) that are worth over a specified amount. This can often cause arguments between beneficiaries, however, particularly if you were not transparent about gifts during your lifetime.

Gifts of personal possessions can also cause conflict if you have promised  someone that they will inherit certain items on death, but then give them away during your lifetime. If these items are specifically mentioned in your will, then these gifts will fail on death.

It is therefore vitally important that if you are considering making lifetime gifts, you should properly document who is to get what, preferably by deed, sign it, and get it witnessed to avoid any confusion on your death. At the very least, you should keep a record of gifts that you have made during your lifetime and sign the record. It is good practice to keep any documents about lifetime gifts with your will, so if there are any challenges, the executors will have all the information they need. It will also assist with completing the account for inheritance tax.

How can gifts be challenged?

A lifetime gift can be set aside on your death if it can be shown that you were unduly influenced into making the gift, or that you lacked the mental capacity to do so.

There are considered to be two types of undue influence:

  1. Actual undue influence, i.e. overt acts of improper pressure or coercion.
  2. Presumed undue influence – this arises from the relationship of trust and confidence between the donor and the recipient.

Lawyers are seeing an increasing number of challenges to gifts on the basis of undue influence, so again, it is important to clearly document your intentions when making gifts to ensure they are not challenged on your death.

If you are concerned about the tax or other implications of making lifetime gifts, you should speak to a qualified practitioner, who will be able to provide you with advice and recommendations based on your specific circumstance.

Andrea Jones TEP, senior associate, and Paula Myers, Partner and National Head of Will, Trust and Estate Disputes at Irwin Mitchell Private Wealth, Leeds.

What happens if there is a dispute over the wording in a will or trust?

Posted on By Joanna Pegum
argument

There is a long history of courts deciding disputes over words in wills and trusts, and  what the court looks for in every case is what the person who wrote the document actually meant by the words used. They will consider:

  • What normal and natural meaning do the words have in the context of the document?
  • Looking at the document, is there any indication as to what meaning the words were meant to have?
  • Is there any other evidence that throws light on the context of the words or the meaning intended (though not all such evidence can be used)?
  • Can the words be shown to be clearly contrary to what the person meant? If so, the document may be capable of being altered (rectified) to reflect what was intended.

The judge will consider the words and any relevant evidence and will come to a decision.

What role do I play?

If you are one of the executors, or one of the trustees, your concern may be only to ensure that you do the right thing and that the argument is resolved. If that is the case, then you should not take sides, but only take the necessary steps to ensure the argument is heard or resolved.

However, if you are pressing for one interpretation over another, then you will need to act positively to ensure your argument is heard. Do not rely on the executors or trustees to argue your case for you.

Will we have to go to court?

No. These days there are many ways of avoiding things going to court. Parties can enter into a mediation, at any stage, so that they can try and agree things between them. Or they can ask a skilled person, or even a judge, to give an early indication of the likely outcome, so they can then try and agree. This is known as an Early Neutral Evaluation.

It is possible that after an agreement is reached, a court may need to approve the decision taken, for example on behalf of children. However, that is a much easier process than arguing it all out before the court.

What about all the costs?

Sometimes it is considered that as the argument needed to be resolved, the costs can be paid from the estate or trust.

However, the modern tendency is to order the party who is perceived to have lost the argument to pay all the costs. That can be a very significant sum, so there’s a very good reason to try and resolve the argument early on.

Richard Dew TEP, Ten Old Square Chambers, Lincoln’s Inn, London.

What is a deceased estates notice?

Posted on By Joanna Pegum
man reads newspaper

If you’re acting as the executor of a will, before you distribute the estate to beneficiaries, and after you have gained grant of probate (or confirmation in Scotland), you will need to consider claims from creditors against the estate of the person who has died.

How can I tell if the deceased had hidden debts?

For most estates, even if you think you’re familiar with the affairs of the deceased, you can’t be sure that all creditors have been identified.

Many people now conduct much of their financial affairs online, and this poses a growing risk for executors of a will. Even if you had a close relationship you may be unaware of the deceased’s online accounts, including shop and credit cards.

As an executor, you’re liable for debts that belonged to the deceased, so you may have to pay these once they’ve been claimed and proved. You are covered, however, if you place a deceased estates notice in The Gazette and in a newspaper that’s local to where the person lived.

You can find deceased estates notices that have been placed in the London, Belfast and Edinburgh Gazettes here, as well as the latest list of newspapers by district. You can do this via The Gazette or contact newspapers direct.

Which laws does a deceased estates notice relate to?

In the UK, this protection from creditors and potential beneficiaries comes from a statutory advertisement that is referred to within the Trustee Act 1925 in England and Wales and the Trustee Act 1958 in Northern Ireland, as well as the Confirmation of Executors (Scotland) Act 1823.

While it’s not a compulsory notice, and not every executor places one, it’s recommended as an act of due diligence, and for the executor’s peace of mind.

How does a deceased estates notice work?

Once you’ve placed the deceased estates notice in The Gazette and in a newspaper, claims can be made for a limited period, namely for two months and a day.

After this time, you’re considered to have made enough effort to locate creditors and potential beneficiaries before distributing the estate. As the executor, you will not be held liable for any unidentified debts after this time.

Is placing a deceased estates notice essential?

It’s not a legal requirement to place a deceased estates notice, but it is advisable, and most solicitors place them as a matter of course (in a 2016 Gazette survey, 80 per cent of probate professionals always placed one if acting as professional executor).

If you don’t place a notice, and a creditor subsequently comes forward after the estate has been distributed, you may have to pay an unidentified debt, for whatever that amount may be.

How much does a deceased estates notice cost?

See the latest pricing for placing a deceased estates notice in The Gazette and in a newspaper local to the deceased here.

You can recoup the cost of the notice from the estate before assets are distributed.

When should I place a notice, and how do I do so?

You can place a deceased estates notice once you have at least one of the following as proof, where applicable:

• Grant of probate
• Letter of administration
• Death certificate

To place a notice in the Gazette, you’ll first need to register and then go to Place a deceased estates notice. If you don’t want to publish your personal address for claims, you can use a PO Box forwarding address.

For more information on what to do when someone dies, see The Gazette’s probate checklist.

I am unhappy with the personal representatives administering an estate. What can I do?

Posted on By Joanna Pegum
Annoyed

As a beneficiary, you have the right to challenge the personal representatives (often known as ‘executors’) of an estate if you have concerns as to whether they are administering it properly.

A personal representative may be liable for the mismanagement of the estate, a breach of trust, or a breach of their fiduciary duty. Assets held by to personal representatives on trust for the beneficiaries of the estate and there may also be other express or implied trusts on which they hold the estate.

How can I establish if they are doing something wrong?

In order to establish whether something has gone wrong, you need the relevant information. As a beneficiary, you are entitled to receive copies of the estate accounts. If your request is declined by the personal representatives, then provided a grant of probate or letters of administration have been issued, an application can be made to court for the personal representatives to fulfil their obligations.

What can I do about it?

If you discover that a personal representative has not been administering the estate appropriately, and you have exhausted all other avenues of possible settlement, you could consider issuing proceedings against the personal representatives for the estate to be restored on the basis that they have acted in violation of their duties to the beneficiaries.

You should consider whether the act complained of is a devastavit (breach by the personal representative of their duty to administer the estate), a breach of trust, or a breach of fiduciary duty, and whether the personal representative is covered by professional indemnity insurance or has assets in their own name to render a claim commercially viable. There may be an exculpatory clause in the will that the personal representative is able to rely on.

In certain cases it may be that an application for the removal of the personal representative is necessary, and this again would involve a court application.

Seek advice

If you are considering taking action against a personal representative you should seek professional advice from a qualified practitioner who specialises in contentious estates. They can consider your case, examine all options and advise on the best course of action.

Caroline Miller TEP is a Partner and Head of the Private Client Team at Wedlake Bell in London, UK.

Could my will be challenged by friends or relatives after my death?

Posted on By Joanna Pegum
family on bench

Under the laws of England and Wales, an individual has complete testamentary freedom. This means that you have the right to leave your estate to whomever you choose.

Certain classes of family members and dependants can, however, potentially challenge your will after your death under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act), if they feel that inadequate provision has been made for them.

On what grounds could someone make a 1975 Act claim?

In order for someone to commence a 1975 Act claim, they would need to show that they have maintenance needs and the provision they have received from your estate is not reasonable to meet those needs.

Where, for example, your children are grown up and self-sufficient, their ability to use the 1975 Act is limited: just because they feel unfairly treated, does not mean that they are necessarily entitled to a bigger slice of the pie.

How much could they claim?

The level of provision that a claimant bringing a claim under the 1975 Act can hope to receive from your estate will depend on whether they fall within the category of spouse or civil partner, or one of the other categories, which includes: former spouses or civil partners, your children, someone you treated as a child, or someone who you maintained prior to your death.

Your spouse or civil partner could expect to receive from the court ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that is required for his or her maintenance’.

For all other categories of claimant, they could expect to receive such provision as would be reasonable for them to receive for their maintenance only.

How can I avoid my will being challenged?

The best way to avoid your will being challenged after you die is to consult a professional advisor, who can consider your circumstances and ensure you have done everything reasonable to prevent this eventuality.

Caroline Miller TEP is a Partner and Head of the Private Client Team at Wedlake Bell, in London, UK

Divorce and the effect on wills in Scotland

Posted on By admin
divorce, will

Finalising a divorce is a vital time to bring your personal affairs up to date – particularly your will, power of attorney and potentially your title deeds.

Many people assume that divorce will automatically invalidate a will, power of attorney or Survivorship Destination, but that is only part of the story.

Although the law has tried to accommodate the likelihood that people will not wish their ex-spouse or civil partner to benefit from their estate, the legal treatment of existing arrangements can potentially give rise to a further set of complications, which can easily be avoided by carrying out a review with a qualified advisor.

Changes to Scots Law

Under Scots Law prior to November 2016, a divorce had no impact on a will, but recognition of the change in families and relationships has resulted in recent changes to modernise Scots Law and bring it more in line with other parts of the UK. Now, like the rest of the UK, an ex-spouse or civil partner is treated as though they have died before the granter of the will. In other words, the will is not automatically revoked but instead it is read as it stands, but ‘missing out’ the former spouse or civil partner.

Why do you need to review your will?

Although a step in the right direction, this can leave your will in a bit of a mess, for example:

  • an appointment of your former spouse or civil partner as executor, trustee or guardian of children will fail, unless the will specifically states otherwise;
  • if the will does not provide for an alternative executor, an appropriate person (usually another beneficiary) will have to apply to the Court so that the estate can be administered;
  • if you have made legacies solely to your ex-spouse or civil partner, these will fail and they will fall into the residue of estate; where there is no substitute beneficiary, the estate may be intestate and will have to be claimed by eligible family members.

As a result, you will need to undertake a review of your personal affairs on divorce or you run the risk of a complex estate, which is not administered as you would have wished.

Dara Richards is a Private Client Associate, Notary Public and Solicitor for the Elderly at Ledingham Chalmer

What is probate?

Posted on By Louise Polcaro
will, probate

In England and Wales, if someone has died, their next of kin, or those named in the will, need to obtain a legal document called a grant of representation, which gives them the legal right to deal with any property, money and possessions. This is known as probate.

The process and terminology differ across the UK – see ‘Elsewhere in the UK’ below.

If they left a will

If the deceased left a valid will, this will explain where their possessions, money and property should go. You will need to locate the original will, which might be stored in the person’s home, bank or with their solicitor or legal advisor.

If there is a will, contact the executors named, who will be responsible for obtaining the grant of probate. If you are an executor yourself, you’ll need to complete a probate application form and inheritance tax form which can be submitted online to the central probate registry.

You can either do this yourself, or instruct a qualified advisor to act on your behalf.

When the grant of probate is obtained, the assets may be sold, resulting in a lump sum to go to the beneficiaries, i.e. those named in the will. Before the estate is distributed, all debts and expenses should be paid. If inheritance tax is due, this will also need to be paid.

If no will was left

If there is no will, the deceased has died ‘intestate.’ The next of kin, or if there is none, the legal advisor or person appointed by the court, will need to apply for a ‘Grant of Letters of Administration’ before the estate can be distributed. If the grant is given, they are known as ‘administrators’ of the estate.

The deceased’s spouse or civil partner will usually inherit the estate in this case. However if there is none, a set of rules known as the rules of intestacy will determine who is to benefit from the estate.

Probate fees

In England and Wales, there is usually no need to apply for probate if the estate is worth less than £5,000. There is an application fee of £155 for estates over the £5,000 threshold, with a £60 fee added if you apply yourself rather than via a solicitor.

Elsewhere in the UK

The legal document is called ‘confirmation’ in Scotland and ‘grant of probate’ in Northern Ireland and the process in each country differs slightly from that in England and Wales. You can find out more here:

The threshold in Northern Ireland is £10,000, with an application fee of £261 for estates over the threshold. An extra £65 personal application fee is charged if you apply for the grant yourself, without using a solicitor.

In Scotland, for ‘small’ estates with a gross value of (currently) £36,000 or less, executors are entitled to free assistance with obtaining confirmation from the local Sheriff Court. A fee is currently only charged for estates above £50,000, with £266 charged for estates between £50,000 and £250,000 and £532 charged for estates exceeding £250,000.

How do I value my estate?

Posted on By admin
couple in town

One of the first questions you are asked when making a will or considering your inheritance tax liability is: ‘what is the value of your estate?’. Like many people, you may not have considered this before and so may be left wondering what your ‘estate’ actually consists of and how you are supposed to put a value on it.

To find out how much your estate is worth you need to calculate the value of your assets, then minus your liabilities.

Assets in your estate

Your home will almost certainly be your most valuable asset, so start with that. Then add in bank and building society accounts and personal possessions (car/household contents/jewellery, etc). If you are valuing your estate for inheritance tax purposes, use a professional to value any possession worth more than £500. For items worth less than that, HMRC (the UK tax office: HM Revenue and Customs) will accept an estimate.

You should also include:

  • Pensions (lump sums payable on death)
  • Life insurance policies
  • Stocks and shares
  • Bonds
  • Interest in other properties
  • Any money you are owed

Liabilities

Your liabilities consist of anything you owe. These include:

  • Mortgages
  • Loans
  • Credit cards
  • Overdraft
  • Any kind of debt

Assets – liabilities = estate value

Having worked out the value of your estate you are now able to figure out your inheritance tax liability. For information on this, read ‘How can I prepare for inheritance tax?’