Varying Trusts

For a will to be valid, the testator must have had testamentary capacity at the time it was made. Testamentary capacity refers to the mental ability of the testator to make a valid will.

When a loved one dies, the terms of their will can sometimes surprise surviving family members, with unexpected beneficiaries or unequal distribution of the estate. In England and Wales, individuals have the freedom to leave their estate to anyone, with no legal obligation to provide for specific family members. Even if the will seems unfair, the law generally upholds the testator's wishes, if the will has been validly made. However, certain family members and dependants may be able to bring a claim against the estate (under the Inheritance (Provision for Family and Dependants) Act 1975), if adequate provision has not been made for them under a will.

In order for a will to be validly executed it must comply with the requirements set out at Section 9 of the Wills Act 1837.

The increase in the value of cryptoassets has undoubtedly contributed to the continued interest and adoption of this still relatively new asset class across organisations and individuals. The ease of purchasing, selling or transferring a cryptoasset has improved significantly over the last few years (and which has in part stemmed from the development of the regulatory environment). However, there is still a technical barrier to entry. This presents a practical problem; if your assets pass to your loved ones on your death, how do you ensure that they are able to actually access and benefit from any cryptoassets that you hold?

When a testator makes a will, they must have the requisite testamentary capacity to do so. If they do not, this may be grounds for a disappointed beneficiary to issue a probate claim to challenge the validity of the will after the testator's death. 

Agreements between family members regarding ownership of land are not always formally recorded, as they are more likely to trust one another to abide by any promises or assurances made. However, where no formal agreement is in place, the owner of the land may not feel bound to abide by any promise, and recollections may vary about what was actually said, particularly when this goes back a number of years. It is important for advisors to be live to potential interests that may arise in land, even where formal agreements have not been put in place, to assist them in safeguarding their clients’ interests.

There are an increasing number of cases before the courts concerning the misappropriation of estate assets. Typically, this involves assets being misappropriated by a beneficiary, family member, or personal representative following death, but may also concern assets which were misappropriated during the deceased’s lifetime.

This weekend, the national press has reported on another bitter inheritance dispute, this time centred on a strawberry farm. 

This contentious trust and probate litigation round-up provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period April 2024 - June 2024.

It is sometimes assumed that a will cannot be valid if it was made by a person who suffers from dementia. However, many people retain capacity to make a will for a significant period following their diagnosis.

The last thing someone usually needs when dealing with the death of a loved one is to face a legal dispute involving members of their family. Further, the prospect of family members in conflict is unlikely to be what anyone wants to happen after they pass away.

Appointing an independent administrator is often a good option when considering the administration of an estate; importantly, it should allow all beneficiaries to feel confident that the estate has been dealt with neutrally and in a professional manner. 

Civil litigation must be conducted according to the procedures and time limits set out in the Civil Procedure Rules. These rules, which are regularly updated, make up a procedural code whose overriding aim is to enable the courts to deal with cases justly. The rules set out in detail how a case is to be conducted in the civil courts in England and Wales and all parties to litigation, whether they are represented by solicitors or not, are expected to comply with them.

Last month, The Court of Appeal delivered an important costs judgement which has the potential to significantly impact how beneficiaries can challenge solicitors’ fees in contentious trusts, probate, private wealth and estate proceedings.

HMRC recovered a record £326million following investigations into underpayments of inheritance tax in the year ending March 2022. Perhaps unsurprisingly in light of these figures, it seems that HMRC have continued their focus on inheritance tax investigations since then.

The issue of financial abuse is growing, particularly in respect of older people. Financial abuse involves the unauthorised and improper use of the assets of a vulnerable person, and can include theft, coercion, fraud or the misuse of powers by third parties in a position of trust. 

This contentious trust and probate litigation quarterly round-up provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2023 - December 2023.

One enquiry that we frequently receive is that, although the enquirer is certain that the deceased wrote a will, it cannot be located (or a will has been produced that they do not believe to be the most recent version).

The Law Commission’s consultation in which it has sought views on whether marriage should continue to revoke a will in light of concerns regarding predatory marriages, closed on 8 December 2023.

A will dispute in the High Court concerning an illiterate testator has received a lot of media attention recently. The deceased’s three eldest children are said to be contesting his will on the basis that it was a mistake that they had been disinherited because their father could not have read his will.