A Practitioner’s Guide to Probate Disputes, 2nd edition

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 be 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 the 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.

“A welcome updated second edition covering probate disputes for the 2020s…offers lawyers excellent common-sense guidance as to best practice…”

From a review by Elizabeth Robson Taylor and Phillip Taylor MBE, Reviews Editor, “The Barrister’

Contents:
Table of Cases;
Table of Statutes;
Table of Statutory Instruments;
Table of Conventions

1. INTRODUCTION1.
1 Wills and codicils;
1.2 Formalities relating to wills;
1.3 Grounds for the 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 done;
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 have been 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 acknowledgment 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 the 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 a civil action and forgery as a criminal offense;
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 the 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 the 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 the 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 the 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 defense;
15.11 Documents to be served with acknowledgment of service;
15.12 Counterclaim;15.13 Contents of defense/counterclaim;
15.14 Failure to acknowledge service or file a defense;
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)