A Practitioner's Guide to Probate Disputes
2nd Edition
Published on 31. March 2022
Book
Hardback
340 pages
978-0-85490-290-3 (ISBN)
Description
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.
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.
More details
Series
Edition
2nd Revised edition
Language
English
Place of publication
London
United Kingdom
Target group
Professional and scholarly
Solicitors, Legal executives, CAB and Law Centres.
Edition type
Revised edition
Dimensions
Height: 229 mm
Width: 152 mm
Thickness: 28 mm
Weight
630 gr
ISBN-13
978-0-85490-290-3 (9780854902903)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Previous edition
Nasreen Pearce
A Practitioner's Guide to Probate Disputes
Book
01/2016
Wildy, Simmonds and Hill Publishing
€105.42
Shipment within 15-20 days
Person
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.
Content
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)
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)