What Do I Do if there is a Claim against the Estate?

Dealing with a claim against an Estate (or a Potential Claim).

 Unfortunately, inheritance-related disputes are common in modern society. Changing family structures mixed with an increase in personal wealth within the older generations, and an increased cost of living, have meant more people are looking to rely on an inheritance for their retirement and many of them are prepared to at least try to dispute a Will, even if they have little hope of success.

WARNING: probate disputes can be really expensive, so it is imperative to take legal advice as soon as you have the basic facts to hand. There has been an upsurge in “contentious probate” claims over the last few years, so there are lost of relatively inexperienced lawyers operating in this area. We can recommend experienced specialists who are likely to be no more expensive and often cheaper. They may even tell you to settle to keep the bills down, as claims against the estate are just so expensive!Be aware that it is not really the executors place to defend a claim – it is the responsibility of those who will lose out to do so, though the executor will often be one of them and may be asked to handle it, and should they agree to do so,  be careful to have the full agreement of the residuary beneficiaries in writing.  Specific beneficiaries get something specific – the residuary beneficiaries get what is left after the specific legacies are paid out, which is usually the bulk of the estate.If the other side does take matters further, you will be required to respond to their claim very quickly so being prepared in advance is essential, otherwise you may not even be able to get a meeting with an experienced contentious probate lawyer, never mind have a sensible case prepared by the time it is needed.

How do I know they have a genuine claim?

There are a number of ways to legally challenge a Will or bring a claim against the Estate. The following is a non- exhaustive list:

• The Will was incorrectly signed;
• The deceased person did not know or approve of the content of their Will;
• The deceased was put under extreme pressure (more that just mere persuasion) to change or make a Will;
• The deceased was not mentally capable of creating a valid Will;
• The assets contained within the Will did not belong to the deceased or they were not available to the deceased to distribute;
• Claims under the Inheritance (Provision for Family & Dependants) Act 1975.

Evidence is key

It is not usually possible to know immediately whether a claim is real or not. The first part of any process is to gather together as much information as possible. It is reasonable to ask the person who is making the claim to prove they are entitled. They should be asked to set out in detail (and in writing) the reasons they feel they have a valid claim. They should also be asked to provide all documents that might support or disprove their claim.As the Executor / Personal Representative you can also take steps to gather evidence of your own. If the Will was prepared by a Solicitor you can ask to have a copy of their file and any previous Wills they may hold for the deceased. If you are an Executor you are entitled to this information immediately upon the death of the deceased. Although less likely to occur, if you are a Personal Representative, your power to deal with the deceased’s Estate only begins once you have obtained the Grant of Letters of Administration. Once you hold the Grant, you are equally entitled to request a copy of any Wills and Will files.Depending on the type of claim being made, it may also be necessary to obtain the deceased’s medical records. These will need to be carefully reviewed, and on occasion a medical expert appointed, to ascertain whether there is anything within the records that may support or dispute the claim being made.Do I have to respond within a certain time frame? How quickly do I have to act?This will depend on the type of claim being made. In most cases delay is not looked at favourably. If you receive notice of a claim you should obtain advice as soon as possible. While there may not be a specific deadline that you legally must respond by (and this will depend), it is good practice to respond within a reasonable timeframe.The above said, if you receive Court papers (which you will know you have received as they will have a Court seal), then there are very strict time limits to respond. Depending on the type of claim these will vary between two and three weeks to respond. Within that timeframe there is a large amount of evidence that will need to be collated, reviewed, and prepared. If you haven’t even made a start, this puts you at a major disadvantage. Collecting and reviewing the evidence is a substantial task, and some of it may be impossible to gather in such a timeframe.

Time really is of the essence in these circumstances.

When do I need legal advice?

As the Executors / Personal Representative it is vital that you obtain advice at an early stage. The cost position varies, as do the steps required, depending on the type of claim being made. If you do not obtain advice early you may inadvertently be found to have acted incorrectly, which can have adverse cost consequences (meaning you can become personally responsible to pay costs or sums of money from your own assets). If you act correctly, the legal costs will normally be payable by the estate, but if you fight and lose, the other side’s costs may be awarded against you or the estate.While you can look to obtain the evidence set out above without legal advice, there will usually be more steps to take and additional evidence (such as other professional records and witness statements) depending on the type of claim being made.We can recommend a range of specialist Solicitors will be able to advise you on the evidence to be obtained, assist you to obtain that evidence, review the evidence, and advise you on the claim being made and the steps to take. They will also be able to guide you through the process so you can be certain that your interests are protected throughout. See the Claim Checker.   More on Probate Disputes.

Error: Contact form not found.