Contentious trust and probate

As individual personal wealth increases and family situations become more complex so the chances of a dispute arising from a Trust, Will or Probate increases.

The Cobbetts team has recently acted on a number of high profile and leading cases in the area of contentious trust and probate and matters with claims involving:

Challenges to the Construction and Content of a Will

The drafting of a valid Will requires certain procedures to be followed. Further, the person making the Will has to do so free of outside influences, have the necessary mental capacity and fully understand the implications and provisions of the Will he is making. A failure to observe any of these procedural steps could lead to the Will being challenged.

The Cobbetts contentious trust and probate team has experience and expertise in acting for both claimant and defendant in disputes of this nature. Disputes involving the construction and content of a Will are notoriously difficult and so we are able to offer practical and sensible advice in this field.

Further, our non-contentious lawyers are able to advise on how the problems highlighted above can be avoided to prevent a dispute arising in the first place.

Finally, where a problem involving the construction of a Will arises, it may transpire that the person who drafted it has been negligent. Again the Cobbetts team has the experience and expertise to advise on such matters and, where appropriate, take action through the Courts.

Claims against an Estate

Under English law a person can leave his estate to whomever he wishes on death. However, where individuals feel that the deceased has not made adequate provision for them under a Will, they could potentially have a claim under the terms of the Inheritance (Provision for Family and Dependants) Act 1975. This Act sets out the persons who can make such a claim and the criteria that have to be matched.

We regularly act for claimants, defendants and the estate in disputes of this nature and have acted on some of the leading cases in this specialist area of the law. Our team offers the most appropriate advice, given the circumstances of each individual case, taking matters to Court where necessary but also looking at alternative methods of dispute resolution such as mediation.

Claims arising from the use of Powers of Attorney

Increasingly, the elderly are making use of Powers of Attorney allowing another person, usually a family member, to conduct day-to-day activities such as shopping on their behalf. In the vast majority of cases, such Powers are operated in a correct and appropriate manner. However it can be the case, particularly where vulnerable people are involved, that allegations of people abusing their position as Attorney arise.

Where such allegations arise, we are able to investigate those allegations and, if necessary, look to recover assets that may have been misappropriated. We are also able to advise Attorneys and the person granting the Power on how best to avoid abuse of the Power or allegations of misconduct.

Disputes arising from the Administration of Trusts and Estates

Disputes can often arise with regard to how a Trust or estate is administered and run. We act for beneficiaries and trustees involved in such disputes involving both on-shore and offshore trusts.

Recent cases we have been involved in have included applications to remove the Executors of an estate and a claim against the Trustees of a company pension fund which its is alleged has underperformed.

Further, the team has the expertise to investigate the misappropriation of trust assets and look to recover those assets through the Courts.

Charities

Giving capital on death is an important way for a Charity to obtain funds. However, such gifts can find themselves under attack from aggrieved relatives of the deceased. As a Charity has a duty to maximise its revenue, we are able to advise on the merits of any challenge to such a gift and advise the Charity as to the best course of action with regard to such a claim.

Cobbetts also acts for the Charity Commission in cases requiring the appointment of receivers and managers to manage the affairs of a charity in place of the trustees.

For further details and advice please contact:

Ed Frankland

Tel: 0845 165 5252

ed.frankland@cobbetts.com

Keith Mills

Tel: 0845 404 2426

keith.mills@cobbetts.com

Kathryn Graham

Tel: 0845 165 5330

kathryn.graham@cobbetts.com

Terry Cooper

Tel: 0845 404 2508

terry.cooper@cobbetts.com

Gavin Bushell

Tel: 0845 165 5255

gavin.bushell@cobbetts.com

The content of this briefing note is for information purposes only and should not be relied upon as a substitute for legal advice. Copyright 2007 – Cobbetts LLP – March 2007