Contentious Probate

Whether you are a dependant of the deceased who has not been adequately provided for in the deceased’s Will or by the rules of Intestacy or whether you wish to seek to challenge the deceased’s Will for some other reason we are able to provide you with specialist advice.

Before anyone entertains litigation, they should seek legal advice and should do so at the earliest opportunity especially in Contested Probate matters. Contested Probate cases are subject to the Limitation Act 1990.

Generally, claims for maintenance made Under the Inheritance (Provision for Family and Dependants) Act 1975 must be brought within 6 months of the Grant of Representation. Beneficiaries making a claim against an estate have 12 years whilst there is no time limit for claims in relation to fraud.

A Will can be challenged on a number of grounds the most common of which are contained below:

  • The Deceased did not have capacity to make a Will
  • The Will is invalid
  • Undue Influence
  • Claim for financial Maintenance (Under the Inheritance (Provision for Family and Dependants) Act 1975)

For further information on testamentary capacity and setting aside a Will on this basis click here https://www.clodes-solicitors.com/testamentary-capacity-questions-answered/

 

The Inheritance (Provision for Family and Dependants) Act 1975 provides financial provision for people who were dependant on the deceased and have not been sufficiently provided for by the deceased’s Will or by the rules of intestacy.

If a Court finds that reasonable financial provision has not been made for the Claimant’s maintenance the Court may order that the Claimant receives such sum from the estate as the Court finds necessary for the Claimant’s maintenance. 

Where a Claimant is a Spouse or Civil Partner of the deceased under the 1975 Act they do not have to establish they are a dependant who requires financial maintenance from the deceased’s estate. Under the Act a Spouse or Civil Partner is entitled to such financial provision as is reasonable in all the circumstances, ‘whether or not that provision is required for his or her maintenance’

A cohabitee who satisfies qualifying conditions under the Inheritance Act 1975 is entitled to apply for provision from the estate of his or her deceased’s partner under the Act.

We deal with many Contested Probate Cases each year. We aim to remove the legal jargon and guide you through every aspect of your contested probate case whether you are defending or pursing a claim or are an executor taking a neutral position.

We would be delighted to meet with you or hold appointments via Zoom or Skype. Please call Damian Clode on 02920 765050 or e-mail today to ensure limitation doesn’t cause you a problem.

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Clodes Solicitors
Clodes Solicitors
A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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