DISPUTES INVOLVING THE MONEY AND PROPERTY OF THE ELDERLY/INFIRM
DISPUTES RELATING TO WILLS/TRUSTS AND TRUST PROPERTY
– WHAT ARE THEY AND HOW ARE THEY RESOLVED?
It is a sad fact that disputes involving the property and money of the elderly or infirm arise frequently. Powers of Attorney are often used as vehicles to commit fraud and it is only after someone has died that the extent of the misuse or fraud is discovered. Most often the person or persons abused are isolated from family and friends and the abuser uses modern methods of control, such as internet banking, to take advantage of their victims.
In some cases, disputes arise after the death of the elderly or infirm person (often referred to as “contentious probate”) involving a claim that a will is invalid or there is a dispute between beneficiaries over who should receive what from the estate. Quite often those named in a will as executors or trustees fail to do what is expected of them or take advantage of the situation for themselves leaving the beneficiaries feeling powerless to do anything about it.
Very often problems arise due to difficulties with the legal title to a house which, due to the way in which the title to the house is held, either does not fall into the deceased’s estate or forms only part the estate.
Sometimes those who had an expectation of a legacy or larger legacy from a deceased person are disappointed to learn they have been “written out” of a will or are to receive a lesser share than expected and fail to appreciate that they may have a right to bring a claim against the estate of the person who has died.
Sometimes problems occur which require that a court be asked to assist in resolving a problem, such as when someone goes missing and is presumed to have died. The court may be asked to rule on whether a will should be rectified to give effect to what a deceased intended or rule on what was intended.
Often it is necessary to take urgent steps to prevent financial abuse of the vulnerable and take action to revoke a Power of Attorney and then protect what is left and seek to recover any losses. The Office of the Public Guardian may be prepared to become involved in order to stop or prevent any abuse. However, civil action may well be necessary together with the appointment of a Deputy who could be a concerned family member.
Challenges to the validity of a will are frequently made. A will could be held to be invalid by a court because the deceased did not have the required “mental capacity” to make a valid will; he/she was being coerced into making the will; the will is not the deceased’s last will or has been revoked; the will has not been signed in accordance with the strict legal requirements or the deceased did not know and approved of the will. There have been many cases reported in the press where a will has been forged. This very often results in criminal proceedings against the perpetrator.
Some wills create trusts of money or property. Sometimes the trust fails, or the terms and entitlements set out in the trust lead to disagreement. These disputes are often referred to as “contentious trust disputes”. Trusts created specifically or those set up by a will very often lead to situations where the beneficiaries disagree, or the trustees appointed by the trust document fail to adhere to the terms of the trust or properly exercise their duties and responsibilities. Problems often result from a failure by the executors (those appointed to protect the estate assets, pay off just debts and distribute to those entitled) to undertake their duties and responsibilities properly. There are many circumstances under which trustees and executors ought to be removed and replaced in order to ensure that the terms of the trust are implemented correctly.
Resolving disputes can be difficult, expensive and prolonged. The aim is to avoid court litigation if possible or limit the extent of any application(s) to a court. Very often an experienced contentious probate solicitor can promote a client’s case in such a way as to persuade the other party to the dispute or at fault to agree to dispute resolution measures (“ADR”) as an alternative to court action. Litigation should always be a last resort and the failure of an opponent to agree to ADR may prove counterproductive to them in any court claim including the court making adverse costs orders against the person refusing to engage in ADR.
Legal costs can be very, very expensive and it is important to ensure that costs are considered in advance of any action and the most appropriate action is taken. Most law firms are willing to work with their clients to a large degree these days and funding options may well be available.
Claims involving protecting the vulnerable, contentious probate disputes, contentious trust disputes and disputes relating to the ownership and entitlement to property have been rising steadily over the past 20 years and there is little sign that the increase will cease in the future. As with all services it is sensible to ensure that you have the right solicitor and law firm on your side. An experienced and forward-looking law firm working in combination with their client(s) is often the answer to sorting out efficiently and costs effectively problems of the nature outlined above.
Tony Pearce can assist in the following areas and more: