A Practitioner's Guide to Probate Disputes: (Wildy Practitioner Guide Series)

This new edition of A Practitioner's Guide to Probate Disputes provides an invaluable guide to the relevant legal framework and the basis on which a will and other testamentary provisions may be challenged. This second edition details the issues that personal representatives must deal with, including grounds for their removal and replacement; lifetime testamentary dispositions and claims; the challenges that can be made in relation to them, and the new measures introduced in relation to the execution and attestation of a will as a result of the COVID-19 pandemic. It also specifically covers wills procured as a result of fraud. This book supplies guidance as to best practice and sets out examples from recent case law to illustrate the legal requirements and the problems which can arise from poor will drafting and a failure to investigate sufficiently all the circumstances relating to the testator/testatrix and their capacity to make a will. New chapters are included on burial disputes and personal representatives. The chapter on procedure for making applications has been expanded to include pre-action steps and disclosure generally. A comprehensive commentary on liability for costs has also been added.

Table of Contents:
Table of Cases Table of Statutes Table of Statutory Instruments Table of Conventions 1 INTRODUCTION 1.1 Wills and codicils 1.2 Formalities relating to wills 1.3 Grounds for challenge 1.4 Other testamentary dispositions 1.5 Statutory right to challenge 1.6 International wills 1.7 Prospective reforms 2 FORM, CONTENT AND INTERPRETATION OF A WILL 2.1 Introduction 2.2 Nature and form of a will 2.3 Electronic wills 2.4 Uncertainty relating to intention, subject matter or donee 2.5 Examples of cases of construction of wills 2.6 Wills where there is a foreign element 2.7 Requirements of international wills 3 EXECUTION OF A WILL 3.1 Formal requirements 3.2 Will must be in writing 3.3 Will must be signed by the testator/testatrix or by some other person at his/her direction 3.4 Position of the signature 3.5 Execution of the wrong will 3.6 Signing or acknowledgement of signature in the presence of witnesses 3.7 Electronic signature 3.8 Attestation in the presence of witnesses 3.9 Execution and attestation of a will during the Covid-19 pandemic 3.10 Evidence of attestation 3.11 Competence of witnesses 4 TESTAMENTARY CAPACITY 4.1 Introduction 4.2 Test of testamentary capacity under common law 4.3 Ascertaining testamentary capacity – the Golden Rule 4.4 At what stage is assessment of capacity relevant? 4.5 Mental Capacity Act 2005 and the test for capacity under common law 4.6 Delusions 4.7 Senility, confusion and lucid intervals 4.8 Drunkenness 4.9 Language and literacy 4.10 Medical evidence and its limitations 4.11 Evidence and standard of proof 4.12 Conclusion 5 KNOWLEDGE AND APPROVAL 5.1 Introduction 5.2 Mistake 5.3 Disability 5.4 Lack of testamentary capacity 5.5 Suspicious circumstances 5.6 Standard and burden of proof 5.7 Conclusion 6 UNDUE INFLUENCE 6.1 Introduction 6.2 What constitutes undue influence? 6.3 Confidential/fiduciary relationship 6.4 Nature of the undue influence 6.5 Fraud 6.6 Burden of proof 6.7 Standard of proof 6.8 Evidence 6.9 Procedure 7 FORGERY 7.1 Introduction 7.2 Evidence 7.3 Interface between civil action and forgery as a criminal offence 7.4 Fraud 7.5 Burden and standard of proof 7.6 Conclusion 8 REVOCATION OF A WILL 8.1 Introduction 8.2 Revocation by marriage 8.3 Revocation by marriage between same sex couples 8.4 Revocation by formation of civil partnership 8.5 Effect of conversion of civil partnership to same sex marriage 8.6 Revocation by annulment or dissolution of the testator’s/testatrix’s marriage 8.7 Revocation by annulment or dissolution of the testator’s/testatrix’s civil partnership 8.8 Revocation and execution of a subsequent will 8.9 Application for the admission to proof of a copy will or codicil where original is missing 8.10 Revocation by destruction 8.11 Conditional revocation 8.12 Preparation and evidence 9 RECTIFICATION 9.1 Introduction 9.2 Sections 20 and 21 of the Administration of Justice Act 1982 9.3 Clerical error 9.4 Failure to understand the testator’s/testatrix’s instructions 9.5 Limitation period 9.6 Burden and standard of proof 9.7 Procedure 9.8 Summary 10 BURIAL DISPUTES 10.1 Introduction 10.2 Ownership of the body 10.3 Exceptions to the rule on testator/testatrix direction over body 10.4 Persons who have responsibilities for the body and funeral arrangements 10.5 Impact of the European Convention on Human Rights 10.6 Procedure 11 LIFETIME AGREEMENTS AND GIFTS 11.1 Introduction 11.2 Contracts to leave property by will 11.3 Proprietary estoppel 11.4 Mutual wills 11.5 Donatio mortis causa 11.6 Conclusion 12 JOINTLY OWNED ASSETS AND ASSETS HELD ON CONSTRUCTIVE TRUST 12.1 Jointly owned assets 12.2 Constructive trust 12.3 Conclusion 13 CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 13.1 Introduction 13.2 Who may apply? 13.3 Time limit for making the claim 13.4 Grounds for making a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 13.5 Matters which the court must take into account 13.6 Powers of the court to make orders 13.7 Property treated as part of the net estate and available for financial provision 13.8 Conclusion 14 CLAIMS AGAINST, AND REMOVAL OF, PERSONAL REPRESENTATIVES 14.1 Introduction 14.2 Breach of duties as personal representative 14.3 Who can bring a claim? 14.4 Burden and standard of proof 14.5 What steps can a personal representative take to avoid personal liability? 14.6 Application for a Beddoe order: direction and sanction of court to pursue or defend proceedings 14.7 A Benjamin order 14.8 Removal of personal representatives 14.9 Grounds for removal 14.10 Who can apply to remove a personal representative? 14.11 Factors which may be relevant 14.12 Procedure 15 PROCEDURE 15.1 Introduction 15.2 Part 1 of the Civil Procedure Rules – ‘the overriding objective’ 15.3 Venue 15.4 First step to take – enter a caveat (objection) 15.5 Probate claims 15.6 Parties 15.7 How to start a probate claim 15.8 What the court office must do 15.9 Service 15.10 Acknowledgement of service and defence 15.11 Documents to be served with acknowledgement of service 15.12 Counterclaim 15.13 Contents of defence/counterclaim 15.14 Failure to acknowledge service or file a defence 15.15 Discontinuance or dismissal of a claim 15.16 Extension of time limits 15.17 Disclosure under Part 31 of the Civil Procedure Rules 15.18 Obtaining further information under Part 18 of the Civil Procedure Rules 15.19 Inspection of testamentary documents 15.20 Rectification of wills 15.21 Costs 15.22 Conclusion 16 STATUTORY WILLS 16.1 Introduction 16.2 Court’s statutory powers to make a statutory will 16.3 Best interests 16.4 Pre-action preparation 16.5 Procedure 16.6 Effect of execution 16.7 Conclusion APPENDICES A STATUTORY MATERIAL A1 Wills Act 1837 A2 Administration of Justice Act 1982 (extracts) B PRECEDENTS B1 Non-Contentious Probate Rules 1987 (SI 1987/2024) – First Schedule, Form 3 Caveat B2 Non-Contentious Probate Rules 1987 (SI 1987/2024) – First Schedule, Form 4 Warning to Caveator B3 Non-Contentious Probate Rules 1987 (SI 1987/2024) – First Schedule, Form 5 Appearance to Warning or Citation B4 Affidavit of Service of Warning and of Non-receipt of Summons for Directions B5 Witness Statement/Affidavit about Testamentary Documents B6 Some Examples of Undue Influence to be Set Out in the Particulars of Claim B7 Defence Limited to Putting the Personal Representative to Proof of the Will B8 Defence Alleging Want of Due Execution: Lack of Testamentary Capacity C PRACTICE GUIDANCE C1 ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (ACTAPS Code)

About the Author :
Nasreen Pearce is a retired circuit judge and was formerly a district judge of the Principal Registry of the Family division. She is the General Editor of Butterworths Wills, Probate and Administration and has written extensively on family law and applications in the Court of Protection She is the author of A Practitioner's Guide to Inheritance Act Claims, 3rd edition, also published by Wildy, Simmonds & Hill.