Wills, Trusts and Probate Disputes Solicitors
Expert advice and representation for individuals when disputes arise in relation to Wills, probate, trust and inheritance
Contesting a Will, challenging probate or disputing an inheritance can be stressful and complex. Our team of specialist trust and estate litigation solicitors understands that starting legal action is often a last resort and will handle your matter with sensitivity.
How can our specialist team help?
As one of the few legal teams in Kent specialising in contentious Wills, trusts and probate, our team have many years’ experience in advising and representing individuals in all manner of issues arising out of inheritance dispute and always seek to resolve matters using the most practical and cost-effective methods.
Disputes about Wills, Estates and Inheritance
When a person dies, the contents of their Will (or the absence of a Will) can sometimes be surprising to family and friends who are left behind. That may be because the testator did not understand what the effect of the Will was, they were unduly influenced to make it, or it may be because there was an expectation that the testator would leave their estate in a particular way, which they did not in the end do. This can give rise to disagreements and there may be circumstances where the Will or inheritance can be disputed. They are as follows:
Claims under the Inheritance (provision for Family and Dependants) Act 1975
Under the Inheritance (Provision for Family & Dependants) Act 1975, where a person falls within a certain specified category and the Will does not make ‘reasonable financial provision’ for that person, they may have a claim for a share (or greater share) of the deceased’s estate, regardless of what the Will says. These specified categories include
- The deceased person’s current or former spouse (or civil partner)
- The deceased person’s child (whether an adult or under 18 years of age)
- Someone who was treated as the deceased’s child
- The deceased’s co-habitant.
- Someone who was in some way financially maintained by the deceased.
What ‘reasonable financial provision’ is, depends upon the category of claimant, and factors which are specified in the Act, such as the claimant’s financial needs and resources, or the length of the marriage in the case of a spouse or civil partner.
For example, Mr and Mrs A have a daughter, Miss B. Mr A dies in the early 1990’s leaving his estate to his wife, Mrs A after which Mrs A and Miss B have a serious falling out and become estranged. Mrs A makes a Will leaving her entire estate to various charities, but nothing to Miss B. When Mrs A dies, Miss B’s financial circumstances are not good; she is living in Housing Association accommodation and reliant on benefits. She is eligible to bring a claim for reasonable financial provision from Mrs A’s estate.
Another example – Mr A makes a Will leaving his main asset, his house, to his 2 sons, and a cash legacy of £1000 to Ms B, who Mr A has been co-habiting with as if she were his wife (even though they were not married) for a number of years, and she has been reliant on Mr A for a roof over her head. Ms B is eligible to bring a claim on the basis that £1000 is not reasonable financial provision.
Will validity claims or challenges
A Will can be invalid or challenged for one or more of the following reasons.
Correct legal formalities were not complied with when the Will was made
The Wills Act 1837 sets out strict requirements for making a valid Will. Broadly, it must be in writing and signed, and the signature must be made or acknowledged in the presence of two witnesses at the same time who each attest and also sign, or acknowledge the signature in the presence of the Will maker.
There is a presumption that a Will is properly executed, but it can be rebutted.
For example, in the case of Murrin v Matthews  although the Will was signed by two witnesses, there was no address given for them, nor could they be found. In the circumstances of the case, the court decided that the (only) beneficiary of the Will was ‘overwhelmingly likely’ to have been involved in the preparation of the Will, and as he produced no evidence from the attesting witnesses, the presumption of due execution was rebutted and the Will was declared invalid.
The person making the Will did not have the necessary mental capacity
Known as ‘testamentary capacity’, this is a common ground for challenging a Will, especially with an ever aging population where cases of dementia are more prevalent. However, it does not necessarily follow that a person with dementia does not have testamentary capacity. The assessment of capacity from the solicitor who drafted the Will can be just as important as a medical experts evidence.
Testamentary Capacity can be affected by all sorts of things other than medical conditions like dementia, such as grief (in the case of Key v Key ), or drunkenness (Chana v Chana ) or the impact of medication on a testator’s mental capacity.
The person making the Will did not ‘know and approve’ the Will
This is applicable if the person making the Will didn’t understand what he or she was doing, or the Will did not truly represent their true testamentary intentions. The more suspicious the circumstances under which the Will was made (e.g the main beneficiary being heavily involved in the making of it) the more evidence is required to show that the Will was read over before it was signed, and the testator truly ‘knew and approved’ it.
There is an overlap here with lack of testamentary capacity but whilst it would be impossible for someone to lack testamentary capacity, but know and approve a Will, it is possible for them to have testamentary capacity, but not know and approve one.
In the case of Gill v Woodall , the court decided that Mrs G did not know and approve her Will. In the Will, her estate was left to a charity with which she had no connection, and about which she made derogatory comments. Mrs G’s domineering husband (who had made the arrangements for her Will to be made) combined with her ‘shy and timid’ nature and her agoraphobia were relevant in the court concluding that the Will did not truly represent Mrs G’s intentions and that she could not therefore have known and approved it.
The person making the Will was unduly influenced
In order to invalidate a Will, the influence must be exercised by coercion in the sense that the will of the testator is overborne. Pressure which causes a testator to succumb for the sake of a quiet life, if to the extent that it overbears free judgment, can be enough to amount to coercion, and a ‘drip drip’ approach can affect free will. The physical and mental strength of a testator is important because the will of a weak and ill person can be affected more easily than a ‘hale and hearty’ one.
For example, in the case of Schrader v Schrader  Mrs S had two sons, Nick and Bill, but she made a Will leaving her house to only Nick. Mrs S was frail, vulnerable and heavily dependent on Nick, which was relevant, as was the court’s finding that Nick was a ‘forceful man with a forceful presence’. The court decided Nick had unduly influenced his mother, and the Will was thus invalid. It decided ‘Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in so doing took advantage of her vulnerability’.
The Will was the product of fraud or forgery
Copying a testator’s signature is an obvious example of forgery, but dishonestly suppressing or destroying a Will, or proffering a Will knowing that it is false or invalid are also examples.
Dishonestly ‘poisoning the mind’ of a Will-maker against a person who would otherwise benefit from their estate, by making untrue statements to them is also a form of fraud (known as ‘Fraudulent Calumny’).
For example, in the case of Edwards v Edwards  the court decided that Mrs E’s mind had been poisoned by one of her sons – Terry, against her other son – John, leading her to make a Will leaving her entire estate to Terry. The untrue allegations included Terry’s claim that John and his wife had stolen things from Mrs E. Her Will was declared invalid.
Mutual Will Disputes
Mutual Wills are where two people agree to make their Wills in a particular, often similar way but also on the basis that neither of them will change their Will after the first of them dies. Mutual Wills are often used where testators want to leave their estate to their spouse or partner, but want to also make sure that whatever is left of their estate after the spouse/partner dies goes to the beneficiaries of their choice such as their children, a sibling, or a particular charity.
Changes in our society, in particular the increase in second plus marriages where each partner has children from a previous relationship, has given rise to an increase in the number of situations where, despite having made a Mutual Will, the surviving spouse or partner makes a new Will anyway, most commonly to benefit their children instead of the children of the spouse or partner who died first. In these circumstances, those who would have benefited from the Mutual Will can bring a claim, and if an executor has distributed the estate to the wrong beneficiaries because the terms of the Mutual Will were not adhered to, they can end up with a personal liability to repay to the estate whatever they have incorrectly distributed. It is therefore important to seek advice early on if there are questions over whether the testator was bound by a Mutual Will.
Proprietary Estoppel Claims
A Proprietary Estoppel claim is where a promise or assurance has been made to a person that they would inherit an asset , and the person has reasonably relied on that promise, and suffered some detriment because of it – but the promise is broken.
For example, Mrs A promises Mrs B that she will make a Will leaving her house to Mrs B, if Mrs B gives up her promising career to come and care for Mrs A full time until her death. Mrs B duly does this but Mrs A’s Will leaves her house to Mrs C. In this case, Mrs B has a claim to Mrs A’s house, the monetary equivalent of it or a portion of the monetary equivalent.
Another example; Mr A is a dairy farmer. He has 3 children – Mr B, Mr C and Miss D. Mr B has worked his entire life on the farm for little or no wage in reliance of Mr A promising him, or leading him to believe that he would inherit the whole farm on Mr A’s death. Mr C and Miss D have both had careers separate from the farm. Mr A however makes a Will leaving the farm to Mr B, Mr C and Miss D in equal shares meaning that Mr B will not in fact inherit the whole farm. Mr B may have a Proprietary Estoppel claim.
Disputes which arise because of mistakes in Wills, or how they are to be interpreted
Under section 20 of the Administration of Justice Act 1982, mistakes in a Will can be rectified if the Wills fails to carry out the testator’s intentions due to a ‘clerical error’ or a failure to understand instructions.
For example, in the case of Marley v Rawlings  , Mr and Mrs R had both made Wills at the same time leaving their respective estates to each other and on the death of the survivor of them to Mr Marley, who was not related to Mr and Mrs R but they, but treated him as if he were their son. However, Mr and Mrs R had mistakenly signed each other’s Wills. Mrs R died first and when Mr R died the question arose whether his Will was valid, and whether the error made by the solicitor in handing the wrong client the wrong Will to sign, could be rectified by the court or not. If not, Mr R’s estate would have passed by the rules of intestacy to his sons instead of to Mr Marley. The court decided it could rectify Mr R’se Will under section 20 and that ‘clerical error’ has a wide meaning to include mistakes preparing, filing, sending and organising the execution of documents, except where it involves some special expertise (which handing a client a document to sign does not).
Where an error is made in a Will which cannot be rectified by the court as it was in the example above, or is the result of a solicitor getting the law wrong, or failing in their duties, the dispute will be between the solicitors firm (or their insurers) and either the person who loses out as a result or the person representing the deceased persons estate – most commonly by way of a claim in negligence against the solicitor.
For example, in the case of White v Jones  Mr Jones (a solicitor) was instructed by Mr Barratt in July to make a new Will for him which benefited his two daughters, one of whom was Mrs White. However, the Will was not prepared before Mr Barratt died on 14 September. The court decided that Mr Jones had been negligent in failing to draft the Will in a timely manner and that he was liable to Mr Barrett’s daughters for their foreseeable loss – ie what they would have inherited had the Will Mr Jones had been instructed to draft in July had been made before Mr Barratt died.
Disputes which arise about the meaning of a Will or a particular clause in it
Disputes about the meaning of a Will or a particular clause in it can arise for a number of reasons. The Will may be unclearly drafted, or the testator may have used language that is open to interpretation. In some cases, the dispute may be due to a genuine difference of opinion about what the testator intended. In these cases, the court can be asked to make a decision about meaning.
Claims against executors or removal of executors
A claim can be brought against an executor if the executor is not following the terms of the Will, is not properly administering the estate, or is mismanaging the estate’s assets. In some cases, an executor may also be removed from their position if they are not acting in the best interests of the beneficiaries.
To forcibly remove an executor, a beneficiary must file a claim with the court stating the grounds for removal, such as the executor’s failure to follow the terms of the Will or their mismanagement of the estate’s assets.
An Executor could be failing in their duties by any of the following;
- Selling estate property at an under-value
- Failing to dispose of a wasting asset before they lose value
- Taking estate assets and using them for their own purposes
- Failing to pay estate debts
- Paying a debt which is statute barred
- Paying the wrong beneficiaries
- Discharging estate debts in the wrong order.
Whether you are a beneficiary or a trustee, our team specialises in cases whereby a dispute has arisen with a trust, including:
- Disputes about the validity of a trust
- Disputes about the meaning of a trust document
- Breach of Trust claims
- Applications to remove or replace trustees
- Matters concerning the disclosure of trust documents and information
- Applications to the court on behalf of trustees for directions or approval of trustee’s actions
- Disputes about jointly owned land and property
Other estate related disputes
- Disputes about the validity of lifetime transactions made by a now deceased, or vulnerable person
- Burial disputes
- Professional negligence claims against Will drafters and estate planners
- Disputes about care home fees
Recognition of our expertise
Head of the team and Partner Deborah Cain is ranked as a ‘Leading Individual’ and Solicitor Jennifer Alderman is ranked as ‘Recommended Lawyer’ in leading legal guide The Legal 500 2024 directory for ‘contentious trusts and probate’. The guide, which is based on feedback from over 300,000 clients worldwide, published numerous client quotes about the team including:
‘They are outstanding in their ability to attribute the law as it applies and to see the nuances of complex cases. Their advice has been invaluable to me.’
‘Deborah Cain was extremely sharp and knowledgeable of what she was doing. This was only confounded when seeing her communications / dealings of my case. She worked extremely efficiently and never left a stone unturned or angle overlooked.’
‘Deborah Cain is an extremely good contentious probate lawyer. She has a great talent in ensuring that her client’s case is put as fully and firmly as possible but gives measured advice to clients in respect of realistic outcomes.’
In the team we have members of the Association of Contentious Trust and Probate Specialists who are an established association for lawyers specialising in contentious trust and probate work.
Our Private Client team is also ranked consistently in the top guides to law firms, achieving the top tier in the ‘Personal Tax, Trusts and Probate’ category in The Legal 500 and Band 2 in the area of private wealth law in Chambers and Partners High Net Worth Guide.
Brachers’ Head of Private Client, Christopher Eriksson-Lee, is ranked as the only top tier lawyer for private wealth law in Kent in the Chambers and Partners High Net Worth Guide.
Find out more about Wills, trusts and probate disputes
If you would like some guidance on any issues involving Wills, trusts, probate or inheritance, then please get in touch with our team of specialist lawyers, by completing our contact form to the right of the page or alternatively you can call us on 01622 690691.
Alternatively, for more information, take a look at our Wills and probate disputes FAQs.
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The Legal 500 2024
They can draw on knowledge across their departments, referred clients are reassured by excellent communication and a pragmatic approach.
The Legal 500 2024
They are outstanding in their ability to attribute the law as it applies and to see the nuances of complex cases. Their advice has been invaluable to me.
The Legal 500 2024
A really knowledgeable team who are extremely competent and efficient.
The Legal 500 2024
The contentious probate team is backed by a strong private client team, this provides extra depth to both their contentious and non-contentious teams.
Deborah Cain is friendly and very approachable – we are pleased that she is working for us, not against us! We have a fantastic relationship with her and received excellent advice with a very difficult issue – she listens, understands and advises.
The Legal 500 2023
Patient and very understanding – Jennifer Alderman put me at ease, making me feel positive about the future.
The Legal 500 2023
Great team. Very innovative and progressive. Never standing still and always forming new alliances within the sector and arranging first class training events.
The Legal 500 2023
Deborah Cain is absolutely first-class. Approachable and practical in her approach, but an excellent lawyer and great guide through the litigation process for bereaved clients.