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What Factors Go Into Challenging a Will?

Posted on by Jonny

So what factors for challenging a will can affect your case?

If you’re an upset beneficiary or believe you have grounds to contest a will, you need to know. Because the results can be concerning and difficult to organise if you do not have the correct advice and knowledge behind you.

However, this guide will enable you to understand the basics of challenging a will. Moreover, you’ll know what to do if the unfortunate circumstances arise that force you to do this.

Factors for Challenging a Will

Certain will challenging factors involve specific grounds. The four legal grounds for contesting a will include:

  • Undue influence: The testator was influenced by a beneficiary or on a beneficiaries’ behalf to change the will in their favour. Or they influence the testator to believe ill of another beneficiary. Sudden changes to the will can often prove this.
  • Lack of capacity: The testator lacks the necessary capacity to understand or know the document they were signing. It can be due to illnesses such as dementia, or even as simple as the testator being deaf on signing the will.
  • An invalid will: The will may be invalid if the signature is not valid. Or if there were no witnesses to the signing of the will.
  • Forgery: All or part of the will may have been forged, for instance, the signature. Forgery even includes cases in which the original will has been lost or replaced unnecessarily.

However, you may also be able to challenge a will:

  • If you were a beneficiary in a previous will.
  • Or if you were financially dependent on the testator and provision was not made for you and your family.
  • You can also challenge executor of the will if you believe that they have been mismanaging the estate in the testator’s name.

How to Challenge a Will

You should seek immediate legal advice from a lawyer as to whether your evidence is strong enough to file an official claim, and they can also give you legal advice on the best way to enact this. Then, you should file a complaint to the probate court before the correct time limits, which can be between six months and 12 years depending on your circumstances and the nature of your claim.

Who can Challenge a Will?

Spouses can challenge the will, as well as former spouse or a partner who has been co-inhabiting with the testator for at least two years.

You can also contest a will if you are a:

  • blood relation;
  • someone considered a relation by the testator, such as an adoptee;
  • beneficiary;
  • a beneficiary in a previous will;
  • someone who has reason to believe that the testator promised them a gift before their passing.

You can also challenge the will if you’re a disinherited heir or relation. For instance, as a sibling or child, as you may still have legal claims over their property and possessions in these cases.

Please note that challenging a will can be a distressing time for families. However, there exist many grounds to contest a will if you are a relation or have reason to believe that the will is not valid.

4 Easy Tips For Understanding Trust Disputes

Posted on by Jonny

Below are some helpful trust dispute tips you should understand. Here’s a bonus tip. Within a family or close relations, it’s difficult to resolve trust grievances without professional guidance. In addition, disputes add stress when you don’t have a full understanding on the full extent of the situation. The following guide helps you determine what the trust dispute is about, and the ways to find a sensible solution.

1. Understand the Grounds for Dispute

When it comes to trust dispute tips, remember that a dispute can begin between trustees for many different reasons. Ultimately, caring for the contents until the beneficiaries reach the age or date in which they may receive the contents. Common grounds for a dispute include problems with trust administration. Also, the addition or removal of a trustee, or issues concerning the trust’s contents. However, the most significant grounds for disputes concern a breach of trust. These happen for many reasons. Such as if a beneficiary gifts a trustee’s assets not meant to receive. Or if a trustee invests the assets without authorisation. Alternatively, if a trustee is not acting impartially.

Trust Dispute Tips #1:

Do your homework and learn what the grounds are for a dispute.

2. Know the Time Limits of Disputing a Trust

When a trust dispute occurs, and you wish to make a claim, there are time limits that you must ensure that you make a claim within. This ‘limitation period’ of time is usually six years from the conduct of a breach of trust. A time limit receives an extension in the case of fraud. After this, your claims will not be valid.

Trust Dispute Tips #2:

You have a six year time limit to make a claim within. But don’t put it off.

3. Understand the Actions that Can be Taken

When you are in the middle of trust disputes, start by seeking legal advice to:

  • Establish your case, and;
  • Discuss your options.

Your trust dispute solicitors may suggest setting the trust aside, which can occur if the trust is found to be invalid. In summary, this can happen for a number of reasons.

  • If the trust is in place of a will.
  • When there has been a breach of trust by trustees or other protectors.
  • Wherein the trust has no legally appointed trustees.
  • Finally, if the trust intends to defraud creditors.

You may then be able to apply to the court to sort out the disputed trusts and, in court, they can help you to remove or replace trustees.

Trust Dispute Tips #3:

You have a six year time limit to make a claim within. But don’t put it off.

4. Try Mediation First

However, applications to court can be long and arduous, not to mention extremely costly. So it’s vital that you attempt to solve the dispute through other options before settling on a court application. With the number of trust disputes at a 43% high, one of the best methods to solve trust disputes is to attempt trust dispute mediation. All parties in the dispute can discuss their options with a professional mediator (without bias).

That mediator can prompt you to consider your options and guide you to a solution. Therefore, when in the middle of family trust disputes, you should ensure that you have detailed knowledge of the best ways to solve the case outside of court, as this will ensure that you are able to maintain good relations with your family and solve problems as quickly as possible.

Trust Dispute Tips #4:

Above all else, consider resolving it out of court through mediation.

A Mini-Guide to Contesting Probate

Posted on by Jonny

Below is a short contesting probate guide. But first, we offer a brief summary of why it matters so much.

Contesting a will can be a daunting and emotionally difficult time for all parties concerned. If you are displeased with the results of a will, you will want to contest probate. However, before you contest a will, there is a certain amount of information that you should know to ensure that you have the best chance of success.

Can Someone Contest a Probate?

You cannot, as a guide to contesting probate, do so simply because you are unhappy with a result. However, your concerns may fall into one of four main categories. Categories, in fact, as grounds for challenging wills. These include the following examples.

  • Lack of testamentary capacity.
  • Undue influence.
  • Forgery or fraudulent wills.
  • The will is invalid.

You may also be able to contest the will if a lack of financial provision goes to a dependant. You can also contest probate if you have been disinherited and have evidence to suggest that you are the heir of the testator’s estate.

Contesting Probate: A Guide

You should file a probate contest to the probate court before the necessary contesting probate time limits. You should file a probate contest up to six months after the probate is granted if you are a filing under the Inheritance Act. However, some grounds allow you to file a contest up to 12 years after the probate.

You should include information such as your relationship to the testator and the grounds you are contesting under. You should also seek legal advice from a lawyer, who can suggest what evidence you may need, advise you on whether you have a strong claim against the current will, and discuss with you the best course of action to establish your claim.

What happens next?

The claims process can take up to a year, and complicated cases can take up to two. Firstly, a solicitor will check if you have grounds to contest the will legally. Moreover, they may take out a caveat to stop the distribution of any of the will’s contents during the duration of the claims process. These last for six months and can be extended for an additional six months if necessary, and if your claims have not been resolved.

Then, mediation and negotiation may be employed in an attempt to prevent the case from going to court. During this, both parties will meet under the supervision of an advisory and unbiased third party who can encourage both parties to discuss their options.

Contesting Probate: Guide to Going to Court

Supposing the claim does not find a resolution. In that case, we’ll go to court, where both parties will give information and a judge will

  • Weigh up the evidence.
  • Decide the successful party.
  • Determine who will pay for the court costs.

Supposing your court case succeeds, the necessary claim’s amounts come from the court according to their judgement.

Regardless, the contesting probate process can be confusing and misleading. However, seeking probate advice and gathering evidence to support your case can clear certain aspects up. Because there’s no reason why your case won’t reach settlement without going to court or causing the least impact necessary to your daily life.

What is Litigation? How Does It Affect You?

Posted on by Jonny

So: what is litigation, exactly. In the world of law, there are a lot of different words that spring up from cases and regulations. To the layperson, these can make the proceedings incredibly difficult to follow. The law is an accumulation of over hundreds of years and takes specialist knowledge to successfully work through.

That is why if you want to make a claim or force someone to do something legally, you’ll need to hire a lawyer. The process the lawyer will go through for your case is the litigation process.

What is Litigation?

As we say, litigation is, in fact, a process. It has also been referred to as dispute resolution, which might help you understand more of what litigation is. In essence, litigation can help a client resolve a dispute they have within the bounds of the law. If you are a landlord who wishes to evict a tenant, then you will need to use litigation to do it.

The same applies if you wanted to pursue legal action against an organisation or business. It applies to any commercial transaction. Litigation can cover contract issues, fraud complains, mergers, and so much more.

It is not just a lawsuit.

What is the Difference Between This and Lawsuit?

A lawsuit is part of a litigation, but the latter does not always mean there will be a lawsuit. In fact, we resolve many issues without the need for a lawsuit. Instead, simple threatening legal action does the job.

Why Would You Need Litigation?

Litigation refers to the entire process a lawyer will go through to help you reach your goals. Again, most litigations don’t involve a courtroom trial, as most reach settlement first. Even if a trial does occur, appeals can be made. In turn, that’s why there is the post-trial litigation process.

What are the Steps of a Litigation?

There are several steps with this type of court action, which we list below.

Litigation Before Lawsuit

When you hire a litigator, you open up a case. This step is key, as it allows the lawyer to collect or to look at the evidence. They will collect enough evidence to compel the party to comply with the plaintiff’s demands.

Pre-Suit Negotiation

The next step will be to create a demand letter. This letter attempts to convince the defendant to comply with the plaintiff’s demands. For example, it could demand the defendant pay an invoice in full. The benefits of settling it before a lawsuit goes forth are monetary: in short, lawsuits are costly for both sides.

Alternative Dispute Resolution

The next step before a full-blown lawsuit is Alternative Dispute Resolution (ADR). An ADR takes place in front of an independent attorney or a panel. It is much cheaper than a trial. The mediator will then work out a settlement.

The Lawsuit

The next step, if the issue hasn’t been resolved, is the lawsuit.

Discovery

Once a lawsuit is filed the discovery period begins, where both parties exchange evidence.

Motion Practice

This is an attempt to forgo the trial. The issue can be settled within the court.

Trial

If that doesn’t work, the case is taken to trial.

Post-Trial Litigation

Trial decisions can be appealed, so this bit is essential to officially close the case.

Understanding the Laws Surrounding Wills

Posted on by Jonny

The best thing you can do for your loved ones is to create a last will and testament. This is the only way to ensure that the people who matter most to you get what you want to give them. But what of the true understanding of the laws surrounding wills?

Fact is, if you do not write one, your estate and belongings will be divvied up according to the court. If you want to give one child your home, you need a will to explicitly say so.

It is ideal for those who have children to have a last will and testament drawn up immediately. In turn, this reduces the number of will disputes and to ensure your wishes are kept. Though you can do this on your own, to ensure its legality you will want to hire a solicitor to have this done for you. You can then pay for a service so they keep your will in a safe location until the time comes.

What is the Last Will and Testament?

The last will and testament is a legally binding document. In short, it explains how you wish your estate to be divided among family, friends and others. Usually, only after the settlement of all debts will assets be given out. Therefore, be sure to accounts for costs first.

What Happens if There is No Will?

If there is no will then it is the government who decides on who gets what. For example, if the late party’s assets total less than £250,000, then the entire amount goes to the surviving spouse or civil partner. If it is more than £250,000, then the spouse or civil partner will receive money, and the surviving children will receive a share of the estate. Siblings, however, can get a share of the estate.

What Happens if There Are Multiple Wills?

There are multiple wills only because the deceased created updated versions. Unless there is a reason to doubt the testamentary capacity at the time of the final will, the last version is the one that will be used.

What Does a Will Need to be Binding?

The laws surrounding wills and testaments dictate that there are a few necessary matters that make them legally binding. Creating a will on your own does not automatically make it legally binding, which is why all wills need:

  1. Testamentary Capacity of the testator.
  2. Proof that the will’s signing comes without duress or mistake.
  3. The signing of the will comes with valid witnesses who co-sign.
  4. Must take place through a proper ceremony.

Testamentary Capacity refers to the frame of mind that the deceased was in at the time of making the will. They must know that they are updating their will, know the full extent of their estate, understand what they want. Also, they cannot be coerced to update their will in any way.

How to Contest a Will

Contesting a will is possible if you are a spouse, child, or live with the deceased. Challenging a will is also possible if you have been named in the will. If the deceased was not in the right frame of mind or not well enough to contest a will, a previous edition might be used. There might have been issues with the execution as well, or you might have proof that the will was created fraudulently or under coercion.

Should You Contest a Will?

Posted on by Jonny

Be honest: should you contest a will? In short, it’s worth doing if you know the right way to approach it.

Because with the death of a family member, the last thing on your mind is the will. You have to deal with the grief, the loss, the funeral, and so much more.

If a will does grab your attention, you hope a family member sets something aside for you. But if it’s contrary to what you expect, you might want to consider contesting it.

What is a Will?

A last will and testament is the only way a person can explicitly state how they wish their estate to be given away at the time of their death. It could explain things like:

  • where the money goes to;
  • who should take care of children who are under the age of 18.

If there are issues with a Will and a reason to contest it, an inquiry will open. This inquiry is actually known as a probate.

The reason why wills are so important is that, if there is no will, it is the government that decides who gets what. This can mean adult children get nothing and the spouse gets everything. Or it could mean that the testator’s lifetime partner gets nothing due to their being no marriage.

Who Can Contest a Will?

Only a few people can go about contesting a will. The spouse, child, cohabitee (lifetime partner) or another person with an explicit mention in the will can go about learning how to contest a will and make a case.

On What Grounds Can You Contest a Will?

There are four main grounds under which you can appeal a will. Perhaps you believe that the testator wasn’t healthy enough or of sound mind to create a Will. Or if they require ’round-the-clock care, for example, when the last Will was made. Certainly then, there is reason to doubt its validity.

Other grounds include a lack of proper execution. It needs a signature, for example, with two formal witnesses. But if their lawyers act as their witness, it could be hard to contest. On the other hand, if there is doubt in the process, an earlier version of the will might become valid.

Of course, suspected fraud or coercion is always a reason to contest a will. These are fraudulent activities, though they can be difficult to prove.

What is the Time Limit?

When it comes to contesting a will, the sooner the better. Because there is a time limit to contest a will.

In general, you’ll have six months to contest a will. The only real example of when you don’t need to challenge a will within six months is if you gain evidence of fraud.

So serious is this allegation that fraud is always a reason to contest a Will and thus, has no time limit.

Yet with fraud, you generally want to contest the Will before the recipient and perpetrator spends your inheritance. This can only be done if you have proof.

How Can you Contest a Will?

You can contest a will easily with the right grounds, evidence, and help from contentious probate solicitors for cases such as yours. To contest a will today, get in touch with us and we will work out the likelihood your case has of winning.

Paying Inheritance Tax: What Is Involved?

Posted on by Jonny

It’s possible you have 99 problems, but paying inheritance tax (IHT) ain’t one. In short, you’ll only need to worry about IHT if your estate is large enough to incur the charge.

However, to ensure your loved ones receive their rightful share to an estate, it’s essential to consider IHT when writing your will. If you’re unfamiliar with inheritance tax, you might be unsure about what it is or what you need to do. Keep reading to learn more about paying inheritance tax and the processes involved.

Who Doesn’t Need to Worry About Paying Inheritance Tax?

IHT goes onto the estate of a person who passes away. In general, IHT’s impact stretches to everything from finances, property, and possessions. However, you will not need to pay inheritance tax if:

  • Your estate’s value is below the NRB of £325,000.
  • You have chosen to leave everything from above the threshold to either your spouse or civil partner.
  • Also, you’re leaving the above threshold to an exempt beneficiary (g. a charity).

However, your estate’s value is higher than the NRB. Accordingly, the sum above the threshold could be subject to a 40% tax rate. Ultimately, this could prevent your loved ones from receiving a lump sum or property left for them in your will, which could lead to them challenging a will.

Currently, the NRB rate is £325,000 until 2021 when it could be subject to change. However, the rate could rise if you are surviving civil partner or widowed. Yet, it is possible for couples to transfer available NRB to a surviving partner.

This is a Transferable Nil Rate Band (TNRB) and can double the amount to £650,000.

Paying Inheritance Tax: When Do You Have To Do It?

HMRC require IHT to be paid six months after a person’s death. A failure to do so will result in the tax accruing interest. A will’s executor can pay the tax using various assets. For instance, the testator’s property or by making instalments over a 10-year period.

However, the outstanding sum is subject to interest charges. But an executor might sell a family member’s assets prior to paying IHT. Therefore, they must ensure both the instalments and any interest incurred are consequently paid.

Unfortunately, if you fail to account for inheritance tax when writing a will, this could lead to inheritance disputes. Even worse, it could cause a beneficiary to contest a will, as they might believe they have not received their fair share of an estate.

How to Pay Inheritance Tax

An executor must apply for an IHT reference number at least three weeks before payment is due on the estate. Upon receiving the number, an executor can either:

  • Pay it from their personal bank account.
  • Or, pay it from a joint account with the testator.

To make a full or partial payment, you can pay via:

  • Online or telephone banking
  • Your bank or building society
  • CHAPS or Bacs
  • A cheque through the post

Conclusion

If your estate is above the NRB threshold, inheritance tax cannot be avoided. To prevent inheritance disputes from arising, you must factor in IHT when writing a will, which will ensure you provide your loved ones with an equal share of your estate, if desired.

How to Ensure Your Will is Valid

Posted on by Jonny

There are a number of reasons to write a will, and also ensure that will is valid. This legally binding document will help you to determine what happens to your estate should you pass away. In turn, you can effectively pass on your property, money, and personal possessions to your loved ones or a charity.

Moreover, a valid will ensures you do not pay far more inheritance tax monies than necessary.

However, to legally execute a will, you must adhere to a number of strict rules stated in Section 9 of the Wills Act 1837. Read our legal advice below on how to ensure your will is valid.

How to Write a Valid Will

A failure to write a valid document could potentially provide people with grounds for challenging a will. To avoid inheritance disputes and ensure a will is legally valid, the testator must:

  • Firstly, be 18 years of age or over.
  • Second, the testator has to be of sound mind.
    • There are many different terms for this, including the testator’s “testamentary capacity” at the time, or;
    • Alternatively, the testator “has sufficient mental capacity.”
  • Third, have voluntarily wrote the will.
  • Fourth, do so in the presence of two witnesses over 18 years old.
  • Finally, two witnesses must co-sign the will in their presence.

A Will is Valid When It Is In Writing

To deem a will legally valid, it must be handwritten in either pencil or ink. Additionally, it can be typewritten into electronic format, so long as it adheres to the above rules.

If you choose to handwrite a will, write it with ink to ensure it avoids amending or contesting. Otherwise, a challenger might state a testator wasn’t certain about a section of a will, so wrote it in pencil.

Consequently, ensure the family won’t struggle with inheritance disputes following your death by writing the document in ink.

The Signing of a Will

It is imperative that two witnesses watch a testator sign a will. If one or both witnesses do not watch the signing, the will isn’t legally valid, and it could provide others with grounds for challenging a will. For this reason, the witnesses must know their role is to watch you sign the document to ensure its validity.

Also, it’s clear that they do not need to know your wishes within the document. Yet, as they witness you doing it, they must be aware that they are watching the signing of your will. Furthermore, they need to declare their presence by both signing their signature.

Additionally, a testator must be witness to that action.

Who Can Be a Witness?

When it comes to signing and witnessing, there are currently no rules regarding who can be a witness for the signing of a will. However, the person you choose must be aged 18 or over and cannot be blind. They also do not need to be a professional or possess any qualifications.

However, to prevent inheritance disputes from arising, avoid choosing a beneficiary, executor or blood relation to be a witness. Good examples of independent witnesses include a neighbour, colleague, or GP.

If, however, you believe you have grounds for challenging a will, contact The Inheritance Experts today.

Witness To A Will Signing: Who Can Do It?

Posted on by Jonny

Planning to write a will in either England or Wales? It will need the signatures and presence of two independent witnesses. If it isn’t, the will is legally invalid, and it could face challenges when you pass away. So having a witness to a will is essential.

There are, however, various rules you will need to adhere to during the signing. To ensure you don’t invalidate a will, read on to learn who can be a witness when executing a will.

Who Should be a Witness During a Signing?

You might be surprised to learn that the laws regarding witnesses are rather relaxed. However, witnesses should be chosen to prove a will has been effectively executed; otherwise, it could make it easier for others to contest a will. For this reason, you should choose witnesses who are:

  • First, the must be over the age of 18.
  • Second, they must be competent, i.e. of sufficient mental capacity.
  • Third, they cannot be beneficiaries or an executor.

For example, you could ask a friend, neighbour or colleague to sign a will. However, only if you do not plan to include them as a beneficiary. It is also possible to ask a GP to be a witness. That’s especially true if you are an elder, are suffering from an illness or are taking medication. By doing so, this could prevent others from stating you were not sound of mind when signing the document and could provide fewer grounds for contesting a will.

Also, it is beneficial to choose a witness who is your age or younger, which will ensure they are alive should you pass away, so they can state they watched the signing of a will.

It is also important to note that a witness doesn’t need to read your will. In essence, they merely need to be a witness to a will signing.

Who Shouldn’t be a witness to a Will Signing?

A witness should be chosen to provide evidence that a will was successfully executed, which can prevent others from turning to will dispute solicitors to challenge its validity after your death.

For this reason, you should avoid asking the following people to be a witness:

  • First, an executor cannot be a witness to a will signing.
  • Secondly, a beneficiary is not a valid witness.
  • Thirdly, a partner by marriage or civil partnership can’t be witnesses.
  • Finally, any blood relatives are also ineligible.

The Will Signing Process

Once your will is complete, you must fill in the following information in the presence of two witnesses in certain appropriate areas.

  • The date of the will’s signatures and declarations.
  • Sign your name using your signature.
  • Ask the witnesses to add their signatures.
  • Print their names, occupations, and addresses.

Once the last will and testament have signatures from both the testator and their two witnesses, you can’t amend the document.

When to Review a Will

While a document shouldn’t be amended once the last will and testament has been signed, it is possible to review and amend it at a later date. For example, consider reviewing your will if your partner passes away, you add to your family, or if you get married or divorced.

If, however, you question the validity of a loved one’s will, it is important to act as soon as possible to prevent the executor from receiving a grant of probate. To do so, contact The Inheritance Experts today to talk to one of our experienced will dispute solicitors.

Explaining Common Trust Disputes

Posted on by Jonny

The law has its complications, especially when it comes to common trust disputes. Which is why when the law (or an individual) is causing you trouble, there’s a better way to handle common trust disputes.

That best way forward is to contact a lawyer and have them work within the bounds of the law for you. In the case of common trust disputes, the process is easier and more likely to succeed.

What is a Common Trust Dispute?

In short, a trust is usually for estates where a person’s assets are considerable. It is, in essence, a better way to:

  • minimise tax and;
  • protect the estate until it’s time for the assets within the trust to go to its trustees.

A testator can create these trusts before death, or as per their request in a last will and testament.

As you can imagine, the goal of a trust is to minimise complications. But even the best plans do have faults and trust disputes do happen.

For example:

  • if the trust is incorrectly put together;
  • when there are disputes between the trustees and beneficiaries, or;
  • if there is evidence of fraud.

When is a Trust Fraudulent?

A trust can be fraudulent for a variety of reasons. If the trustee is negligent or commits fraud, for example. Or if a trustee ignores a breach of trust committed by a fellow trustee. Negligence almost always will open up a case for fraud against the trust and/or its trustees.

Moreover, it’s generally easy to prove. If a trustee in any way neglects their duty as the trust outlines, they are inherently negligent.

Another example is if the person who creates it lacks the mental capacity or faces coercion into making it. This is similar to any fraud for the last will and testament.

If the settlor, or the person who set up the trust, was given negligent legal or tax advice this could also make the trust fraudulent. This same applies if the trust documents themselves don’t line up with the wishes of the deceased in their will.

Trusts can also be used to disguise ownership of estates. This is also a fraudulent activity, one of several common trust disputes scenarios you might encounter.

In short, either fraud can occur to exploit the trust, or fraud can occur because the trust is a result of fraudulent purposes. Amongst common trust disputes, a dispute in trusts occurs when there is either fraud or a suspicion of fraud.

What to Do if You Want to Dispute a Trust?

Instigating family trust disputes can be challenging. There is a lot of documentation and people within a trust. Moreover, if you suspect fraud it can also be difficult to prove. Also, even if you wish to dispute a trust, you don’t want to burn bridges while you are at it.

Bringing family into litigation can hurt feelings, and ruin relationships. That is why when you want to contest a trust you need trust dispute solicitors who can handle the process delicately. You will also want to choose professionals who are well versed in the law and changes that have been made over the years.

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