Setting up a charity or foundation to give back to the community? Partner at Andrew & Co...
Contentious Trust & Estates, including Inheritance Act claims (TOLATA)
We can advise on a range of disputes that arise in the Private Client area which term covers wills, the administration of estates and trusts, and acting for vulnerable, often elderly clients.
These broadly fall within four categories:
- Inheritance Act claims
- Estate and Trust disputes
- Property claims on the breakdown of an unmarried relationship
- Financial abuse
Inheritance Act claims
It is possible for certain people who have not been provided for adequately by a person who has died to make a claim on that estate on the basis that provision ought to have been made for them. The most common claims are those by a spouse, or a child of the deceased, although there are other groups of people who may be able to claim, including someone who was dependent on the deceased. This is an issue that has hit the headlines recently, with a lot of media coverage about an estranged adult child claiming on her mother’s estate that had been left to charity.
We can assist people wishing to pursue such a claim, personal representatives who are administering an estate which is subject to such a claim, or indeed beneficiaries of an estate whose inheritance is being challenged.
Probate and Trust disputes
The term “probate dispute” covers a number of difficulties that can arise during the administration of an estate or trust. Probably the most common issue we encounter is where there is a dispute between beneficiaries of an estate, or problems as between beneficiaries on the one hand, and the personal representatives on the other. There are usually practical ways of dealing with these issues that can worked through as part of the estate or trust administration, although in very tricky cases, the parties may have to resort to Court proceedings to resolve their difficulties.
Another aspect of Probate disputes is where there is a challenge to a will. The most common challenge to a will is that the person who signed the will lacked capacity to do so, ie they did not understand what they were signing. Occasionally a challenge is made on the basis that a person was subject to undue influence such that they were pressured into signing something they would not otherwise have signed. Obtaining the relevant evidence to prove such a claim can be difficult in practice. If it appears that a claim does have merit then we would usually advise that a specialist barrister assist in dealing with the matter.
If you need advice regarding an Inheritance Act claim or a Probate and Trust Dispute, please call our Private Client team in the first instance, who may then refer you to our Dispute Resolution Team, depending on your circumstances.
It is becoming more and more common for partners to cohabit rather than marry. There is a misconception that if you live together long enough, you become “common law” spouses, and therefore gain the same rights as married couples. This is not the case. If you are not married, your claims against each other are extremely limited. In fact, the only claim you may acquire is in property.
If you lived together in a property owned only in the sole name of your ex partner and you wish to , establish a financial interest in that property but you have to prove that you have made a direct financial contribution to the value of the property, for example, payments towards a mortgage, or a contribution to work on the property that may add to the value of the property.
In such circumstances, as long as you are able to prove your contribution to the property, an application can be made for the property to be sold, and for you to receive your monies back. You have to prove that you invested the money into the property on the basis that you believed you were acquiring a share in it.
If however, you lived with your partner in a jointly owned property and following the breakdown of your relationship, you wish to realise your interest , but your partner is not willing to sell, or is unable to buy you out, you are able to make an application to the Court under the Trusts of Land and Appointment of Trustees Act 1997 (ToLATA) for the property to be sold and to decide how the funds should be divided. If there are no specific agreement in place in relation to shares of ownership, the starting point is a 50/50 split of the equity.
One final option relates to circumstances where there are minor children of the family, and the property is required to continue to be a home for the children.An application can be made in these circumstances for one party to remain in the property until such time as the children reach their majority, provided the parent who wishes to live in the property can meet the outgoings on the property.
Should you need assistance in relation to resolving property matters in circumstances where you are not married, please contact a member of our Family Law Team.
Sadly, it is the case that elderly or otherwise vulnerable members of society are sometimes the victim of financial abuse. This can happen where a person cannot manage their own affairs and a person appointed to do so under a power of attorney or by the Court as Deputy abuses their position and uses the person’s funds for themselves. Sometimes the vulnerable person may still have the capacity to understand and manage their own finances, but they do not have the capability to do anything about it, for example because the abuser is their main carer and they fear what would happen if they spoke out.
Unfortunately we do come across such cases more often than we would hope to, but there are ways we can assist a person who may be subject of such abuse, and the people caring for them.
The steps that can be taken in these circumstances differ depending on the person’s capacity, ie their ability to understand their financial position. If there is a power of attorney or Deputyship in place then there are procedures that can be invoked to involve the Office of the Public Guardian and the Court of Protection, the official body that oversees the affairs of those who lack the capacity to manage for themselves. We would also liaise with the local authority Adult Safeguarding team, and if there is evidence that the abuse may amount to criminal activity, the police.
If the vulnerable person has capacity, then there are steps we can take to put in place a power of attorney so that someone they trust can then assist or run their affairs, and there are various other ways of protecting a person’s assets such as the title to their house.
The solicitors in our Private Client team have experience of such matters and although in most cases we assist clients in planning their affairs to prevent problems happening, we can assist in those cases where something goes wrong. If abuse is proven, then our Dispute Resolution team can assist in claims to recover misappropriated funds.
To speak to one of our trust law specialists, please contact us on 01522 512123 (Lincoln) or 01636 673743 (Newark).