The following interview with Rachel Waller, Partner, and Head of Contentious Probate and Trusts / Court of Protection team was first published by the London Resident on 18th April.
Whether you’re the executor of a deceased loved one’s Will or a beneficiary of divided assets, difficult disputes can often arise.
Disagreements that relate to the administration of a deceased person’s estate are known as contentious probate. Executors are appointed by the deceased to administrate the division of assets to the beneficiaries according to the Will. This can be a very complex and lengthy process that often deals with sensitive issues between family members.
“These disputes can accentuate existing tensions within families and potentially cause the administration process to derail,” explains Rachel Waller, partner at Bishop & Sewell, based in Holborn.
Below, Rachel talks us through the common causes of contentious probate disputes, potential legal pitfalls and how solicitors can guide you through this difficult time.
Q: How do contentious probate disagreements arise?
A: They can occur for a variety of reasons and may involve a number of parties, which can include executors, beneficiaries and dependents. Perhaps two executors have been appointed to oversee the estate and one of them has begun to act in an inappropriate manner, taking decisions that contradict the Will. Sometimes the testator (the person creating the Will) can be unduely influenced during the creation of the Will, to change the beneficiaries or make greater provision for them.
Contentious probate claims can be made if there is a dispute over how the estate is administered, or to challenge the validity of a Will. Certain categories of people who were provided for by the testator before their death can claim for “reasonable provision” under the 1975 Inheritance Act, if they are left out of a Will or not left as much as they need.
Communication between the parties can break down easily and the situation then becomes very fraught, so it is vital for people to seek legal assistance from experienced solicitors.
Q: What are the legal pitfalls to watch out for?
A: These usually arise on a case-by-case basis, however there are some precautions that can make the process a lot smoother. For example, executors need to make sure they are always acting within their remit.
Not acting in the best interest of all beneficiaries or failing to uphold the terms of the Will can be sufficient grounds for a claim against the executor. It is also important that executors remain neutral in any dispute, unless they have obtained permission from the Court to take specific steps.
As a result, executors need to be extremely careful as they can end up being financially liable for any losses to the estate. Seeking professional legal advice can make all the difference, especially if an executor is also named as a beneficiary in the Will, as then they have to negotiate their two, sometimes conflicting, roles. Having a trustworthy advisor to help you navigate these difficult waters is essential.
Q: How can executors resolve these disputes in a fair, balanced way?
A: Often, executors will be quite close to the family if they have been appointed by the deceased. If they have known the beneficiaries and dependents for some time, utilising their expertise and knowledge of the family dynamic can help to iron out any potential problems before they arise.
However, as mentioned, it is not usually appropriate for executors to take an active role in a dispute, and they should remain neutral. Therefore, it can help to appoint a professional executor to deal with the estate.
Alternatively, having a specialist solicitor on hand during particularly complex cases can be invaluable. In the event of a family dispute or a claim against the validity of the Will, solicitors can advise executors of their duties, and also draw upon their extensive experience and list of contacts, such as forgery experts, to shed light on sensitive aspects of the process.
Q: What can solicitors do to provide support for clients during these disputes?
A: As contentious probate solicitors, a major part of our role is helping people get through an exceptionally difficult time in their lives. Bereavement coupled with an extremely distressing conflict with a family member requires empathy, compassion and understanding.
These attributes are central to our approach, and, when combined with a deep understanding of the legal aspects and a supportive outlook, we find that many of our clients have the courage to stand up for what they deserve.
By validating your feelings and providing clear legal guidance, we can help to resolve these difficult disputes with a minimum of acrimony – helping you to move on with your own life.
Rachel Waller heads the Contentious Probate, Trusts and Court of Protection teams, and has extensive experience in dealing with emotionally challenging and sensitive topics. Her approach is client-centred and empathetic, working closely with clients to find the best way forward for them.
If you need advice or assistance on any of the issues raised in this interview / article, please contact Rachel Waller on 020 7091 2706 or email: contentiousprobate@bishopandsewell.co.uk
The above is accurate as at 25 April 2023. The information above may be subject to change during these ever-changing times. The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
