Counsel & Conversation | S1 E5 | Contested Probate | Swinburne Maddison

Caroline Smith 0:05
Welcome to Swinburne Maddison’s Counsel & Conversation, where our experts talk about everyday legal scenarios.
Today, I’m pleased to have with me Abigail Zuk, who is a Managing Associate on our dispute resolution team, and Abi specialises in Probate Litigation. Welcome, nice to have you here today. I’ve also got Jenna Keir-Kendrew, who is also a Managing Associate on our Dispute Resolution team, and Jenna, also working with Abi, specialises in Probate Litigation. Great to have you here.

Okay, right. So the scenario that I’ve got today, I’m going to read that out and then Abi, I did think we’d start with you, if that’s okay. So.. David and Jane lived together for 12 years in a house owned by David, although Jane contributed to living costs, David died without a Will, leaving behind two adult children from a previous marriage. What might happen in this situation, and what are the risks to Jane?

Abigail Zuk 1:06
So this is quite a difficult one, really, because the default position is that legally, David’s children will be entitled to the property. Whilst they might not have anything to do with the property, they will then be the legal owners by default. So that leaves Jane in a really difficult position, because really, she’s got no automatic entitlement to remain living in the house and actually become a legal owner of the property. She’s got no entitlement to have that unless she can reach an agreement with the adult children and any other beneficiaries of the estate. So the issue is that the legal and beneficial interests of a property are very different. So she might be able to argue that she has what we call a beneficial interest by way of contributions towards daily living costs or general living costs in relation to the property, like mortgage, renovations – that’s quite a common one that we see. You know, whether that’s extensions or replacing windows, things like that, big sums of money, or perhaps by agreement, if there was some kind of agreement with David before he passed away, she might be able to evidence that. So it really depends on the situation. So obviously, that scenario raises far more questions.

Caroline Smith 2:24
So actually, in fact, she could end up in a position where she doesn’t have a home. I mean, that worst case scenario, but without a will, the children are legally or will be legally entitled to the house. So she’s got to demonstrate that, right? That’s, that’s really interesting. I mean, if we can move on, Jenna, to the fact that David has actually died without a Will, perhaps you can expand a bit on what that means and the complications of that.

Jenna Keir-Kendrew 2:50
Yeah, as Abi mentioned, it’s really difficult because Jane doesn’t actually have any automatic entitlement to any of David’s assets. Ultimately, he hasn’t made a will, and it’s not uncommon for people not to make a will before they pass away. It can be quite a difficult conversation to have with other members of the family. Ultimately, we’re in a situation, or Jane’s in a situation, where she won’t inherit any of David’s assets. So from Jane’s point of view, what that means is if feel she’s not been reasonably provided for under the terms of a Will, or under the terms of the intestacy rules and how that applies, she would potentially be a beneficiary that could make a claim against David’s estate. And the basis for such a claim would be that she was financially dependent on David. He was providing her with housing for a significant period of time, and as a result of her not being provided for by his estate, and having that dependency, she may actually have a claim against his estate to protect her interests.

Caroline Smith 3:51
So that’s really interesting, but worrying for Jane. I mean, I imagine that Jane presumably will be David’s next of kin if they’ve been together for years. So, would she not have some legal rights there?

Jenna Keir-Kendrew 4:06
Unfortunately not. And it’s, it’s quite a kind of common misconception that she would have. Ultimately, the idea of next of kin is really to facilitate day-to-day decisions with care and things like that, and to act as a point of contact during that person’s lifetime. They’re actually legally next of kin. It doesn’t mean anything following someone’s passing away.

Caroline Smith 4:28
I mean that just shows the need to make sure that you get advice and get a Will, as you say, difficult conversations, but they need to happen. So I’m moving on to some specific questions now, and again, I’m going to come back to you, Abi, if that’s okay. So perhaps you can talk more about the legal grounds if you wanted to contest a will in the UK?

Abigail Zuk 4:49
There are many different ways you can contest a will, but I would say that the top three are on the grounds of the lack of capacity of the person who made the will. Undue influence, which is influenced by family members, and encouraging a family member to leave their estate to a particular person or particular individuals. And then, thirdly, I would say that there’s a principle called proprietary estoppel, which is basically a promise to a person that’s broken, and that’s often broken by way of leaving something in a will to somebody else. So that promise is broken, often upon their death, and then whatever it is, the land, for example, passes to somebody else.

Caroline Smith 5:34
Can we deep dive into them a little bit more then? So starting with the first one, can you expand a little bit on that?

Abigail Zuk 5:42
Yeah, so it’s quite a common allegation, actually, why somebody’s looking to contest a will, to suggest that the person who made the will lacked capacity at the time. So it is quite an interesting one, because it often involves looking retrospectively through solicitors files, for example, when the Will’s been prepared and the instructions that were given at the time, historic medical records, things like that, and sometimes independent medical reports can be obtained as well after the person’s passed away, to give a bit more of an insight into whether they’re likely to have had capacity or not at the particular day that they’ve prepared the will. So that’s a really interesting one, because it is a bit of an investigation on our part. You know, our clients instruct us to challenge a will on that basis, because it really is an initial investigation, and we can’t really say at the outset whether it’s likely to succeed or not. So it is quite difficult to prove that type of claim, because obviously, the person who made the will is no longer there. So it’s a case of also gathering witness evidence from other witnesses and looking at all of the circumstances of the case as to whether you’re likely to be able to challenge it on that basis.

Caroline Smith 6:49
And then, what about undue influence?

Abigail Zuk 6:52
So in relation to that, it’s essentially where there’s an allegation that family members or somebody close to the person that’s passed away has encouraged them to leave their estate to somebody or some particular individuals. So there’s often more of a presumption of under influence, where it’s, for example, a son or daughter that has perhaps influenced them or had a very, very close relationship with them. And it’ll, you know, you’ll have to look at things like an appointment with a solicitor is being made by a family member who the allegation is being made against, and just particular circumstances of each case, really, because every case is just so different, and there might be particular circumstances that you’ll have to look into, and they are very kind of witness evidence heavy. We have to have a look at who’s been involved in a particular situation, other family members that might have some input in, you know, being able to explain the different relationships between the family members. So it’s really interesting. But again, those types of claims are really quite hard to prove, but like I said before, probably a little bit easier if it’s, for example, a son or daughter. And you know the circumstances are quite clear, and you know there are obvious records there. So, to provide you with a bit more information on the third ground of challenge that I mentioned earlier, which is proprietary estoppel. So this is a typical one that we often see where it’s it concerns farms and farmland and your close family members. So quite often, the typical situation is parents agree or promise that they’re going to leave a farm to their son or daughter. That son or daughter works on the farm for a really low wage for 30 years on the basis that they thought that they were going to receive the farm once the parents or parent passes away. So essentially, they’re relying on that promise, receiving that low wage because they think that they’re going to get this at the end of the day. But then it turns out that actually, when the parent passes away, they find that the farm has been left to another family member or left somewhere else. So it’s essentially a claim on the ground that you know they’re not going to receive what they expected to receive, and that they’ve added to their detriment in relying on that particular promise. So again, that’s a really interesting one. And the farm example is a typical one that we see, but we also see it in a lot of other situations as well.

Caroline Smith 9:27
And like you say, it sounds like it’d be quite difficult to prove a promise. That’s the first thing that’s going through my mind. And how would somebody even begin to prove that?

Abigail Zuk 9:38
It’s very difficult. And again, like the other scenarios that I’ve explained, it is often very witness/evidence heavy, so you have to gather information from witnesses, but it might be that you can prove it through actions. So, for example, if the person was receiving a low wage, and it was because they were relying on that promise. Yes, I suppose the court would expect them to explain on the other side, you know, why else would they be receiving that low wage? Why else would you do that? You know, when there are other potential employment options out there, they could have only done something else instead.

Caroline Smith 10:16
Yeah, yeah. Really interesting. Jenna, I’m going to turn to you with it for the next question. Is there a time limit for bringing a probate claim?

Jenna Keir-Kendrew 10:25
It’s a really good question, and it depends on the type of claim being brought. So there’s some claims that have statutory time limits attached to them. So, for instance, the claim we discussed earlier with Jane, the Inheritance Act claim that has a six-month time limit at the point the grant of probate or the grant of representation is issued, so it’s a very short period of time. And as a result, you know, we’d encourage people to get advice as early as possible, because you know that six months can be used very, very quickly, it can be used up. A claim to challenge the validity of the will, which is something Abi discussed in relation to the capacity and undue influence issues, attracts a 12-year time limit. So it’s quite a substantial length of time. But again, you know, if someone passes away to try and bring a claim 10, 11, 12 years down the line, it’s pretty difficult, because we’re relying on evidence from witnesses and from solicitor files that might have been destroyed if we’re leaving it as long as that. So again, the quicker the better, they were in terms of the investigations, the proprietary estoppel claim that doesn’t have any statutory time limit attached to it. But again, the longer you leave it, the more difficult it’s going to be to have the claim heard and have a compelling claim brought to court. So I think the takeaway really is that, yes, there are statutory time limits with most claims, but the sooner you realise you may have a claim, or you want to discuss what your rights are, the better, really.

Caroline Smith 11:59
So Jenna would, as an individual in that situation, if you wanted to contest a will, can you do that yourself? Or do you have to seek legal advice to do that?

Jenna Keir-Kendrew 12:08
No, it’s possible to do it yourself, and the court wouldn’t discriminate if a litigant in person, someone representing themselves, brings a claim, or a solicitor is bringing a claim on behalf of a client. So it’s absolutely possible for someone to bring that kind of claim themselves. I think the important thing to bear in mind is that a lot of these claims are very fact-specific and very case law heavy. So, without having that background and having that context, it can be quite difficult to pull together what has to be pulled together for the claim. So whilst it’s possible, you know, as a solicitor, I would always say, to seek the advice, I think that to pull together a compelling claim, having that insight into the law would really make a big difference.

Caroline Smith 12:52
I’ve got another question, Abi, for you this time. How can I temporarily block a grant of probate?

Jenna Keir-Kendrew 12:59
So there’s a process that you can use called entering a caveat, so that’s entered at the probate registry, and it’s only a small fee, and it’s a short form that you have to lodge to do that. So the difficulty with this is that anybody can do that in relation to any deceased person’s estate. So we would always recommend obtaining legal advice before doing this, because really, there are only certain grounds that you can rely on to lawfully lodge a caveat. So really, a caveat can be challenged as well by the potential executives of an estate or other interested parties. So we do see this quite a lot, where individuals would just readily put a caveat against the estate, stop the estate from being able to be administered, because obviously the correct executor, or executors are unable to obtain the grant of probate, and it essentially just causes a bit of an impasse, or a stalemate, so nothing further can be done. So it is really tricky, and we find this situation quite a lot. So what we would suggest is to always obtain legal advice before going ahead with a caveat or keeping a caveat in place, because it really is a tricky situation. If you know, if you’ve just got that in place, you can extend it by six months at a time. So often, you know, years go by, and a caveat is still in place. So it is. It’s just so readily available to individuals and so easy to do that it does sometimes cause a bit of a problem.

Caroline Smith 14:28
And of course, it’s not finding a solution, as you say. It’s just stopping things from progressing. Yeah, it’s really interesting. Okay, so I’ve got another question for you, Jenna. Can an executor be removed if they are mismanaging the estate?

Jenna Keir-Kendrew 14:43
Yeah, it’s interesting, actually, because there’s quite a lot of different routes that beneficiaries can go down, and other executors can go down if there are issues with how the estate’s been administered. I think one of the things that we need to bear in mind, and that we tend to keep at the forefront of clients’ minds, is that we’re also managing relationships, and because of that, actually looking to remove an executor straight out of the blocks is quite an aggressive and quite a hostile way to proceed. So there are three main routes to go down that spring to mind. The first would be if an executor is not properly accounting and not given the information that they should be given to beneficiaries, an application could be made to the probate registry, and that application is to ask the court for the information pertaining to the estate that hasn’t been given. So it’s quite it’s not an inflammatory application. It’s not overly hostile. It’s basically saying to the court, we need this information, and the executor should be compelled to give it. So that’s one route that beneficiaries could go down. The second route would be to make a part 64 application to the court. Now, what that does is it is either made by a beneficiary, an interested party or a co-executor of an estate, whereby the court has asked the question, “What should we do in this estate to assist the administration?” So the court will receive the application, and from the court’s point of view, they’re looking at what has to be done for the administration to progress and to protect the interests of the beneficiaries. So again, it’s fairly cost-effective. It can be dealt with pretty quickly, and it’s not going to the lengths of removing an executor, which is a very hostile way to go. If that’s not sufficient, and actually there has been a lot of misconduct, or there are concerns about money being misappropriated in those types of allegations against executors, a claim could be made to remove an executor. There is a threshold attached. You know that the court’s reluctant to remove an executor when they’ve been appointed under a will, but actually, if an executor, for instance, is failing to do anything to progress the administration of an estate, that delay would, in some situations, give rise to removal. So from a beneficiary’s point of view, there are certainly roots available, because from the court’s point of view and the appropriate registry’s point of view, estates have to be administered in a reasonable manner, in a timely manner, so they’re trying to strike the balance of beneficiaries having a right of recourse verses the executive been able to have some discretion to do what they Have to do under the terms of the will.

Caroline Smith 17:23
Okay? So to wrap up this session, which has been really interesting talking to you, I’ve got three final quick questions just to summarise everything. Abi, I’m going to come to you on this one. Who is responsible for the legal costs of probate litigation?

Jenna Keir-Kendrew 17:37
Well, that’s a tricky question. It usually depends on what the type of case is, because there are so many different case types within the umbrella of probate litigation. But what I can say is that usually the default is that the loser of any litigation pays the winner’s costs in addition to their own. But then it depends on things like the conduct of the parties throughout the litigation, any early settlement offers that have been made and rejected, things like that. And again, it depends on the type of case, really. So that’s the default position. Sometimes an order can be made that costs be paid out of an estate. So if there’s a big pot of money there, parties haven’t really acted unreasonably in bringing the litigation. Sometimes an order can be made for payment out of the estate as well.

Caroline Smith 18:21
Jenna, what happens if a will is found to be invalid?

Jenna Keir-Kendrew 18:24
So typically, when someone makes a new will, it will automatically revoke any previous wills they’ve made. If that latest will is found to be invalid, the previous Will will stand unless that Will has been destroyed. In the event the Will has been destroyed, it would then revert to the intestacy rules.

Caroline Smith 18:42
Final question, Abi, for you. Can a Will be rectified if it contains a simple mistake?

Abigail Zuk 18:48
It can, in the sense of, if it’s a clerical error, or, you know, a clear mistake, if instructions are given to a solicitor, for example, and something’s been spelt incorrectly, or it’s a wrong address, or something like that, you know, something really obvious. But if it’s something like somebody challenging a will or the wording of the will on the basis that they didn’t think that that particular person would have given those instructions to the person who was writing the will, that is not a rectification claim; the court wouldn’t rectify it on that basis. So it has to just be something quite simple and a clear mistake.

Caroline Smith 19:20
It’s been fascinating talking to you two today. I mean, you know that I see a lot in the office, and I enjoy hearing you talk about your area, but the specialist knowledge is immense. So thank you, Abi and Jenna, for giving up your time today. It’s been great. Thank you.