• Challenges regarding the validity of Wills, including lack of capacity and undue influence and fraudulent and forged wills
  • Rectification of Wills
  • Disputes arising as a consequence of missing or lost Wills
  • Claims under the Inheritance (Provision for Family and Dependants Act) 1975
  • Proprietary estoppel, constructive and resulting trusts
  • Removal of executors and trustees
  • Applications for inventories and accounts

Non contentious legacy administration

  • Assisting charities with the administration of estates and advising on the most tax efficient ways to deal with assets
  • Dealing with tax issues and liaising with HMRC
  • Advising on Deeds of Variation and rectification of Wills
  • Advising on the protection of the charity’s interests under Will trusts and the correct interpretation of the tax provisions within the Will
  • Applications to the Probate Registry in accordance with the Non-Contentious Probate Rules
  • Abated legacies
  • Requests for information
  • Professional administration costs
  • Sale of assets
  • Dealing with foreign estate assets

To watch our ILM seminar on financial abuse please click here.

Legacy gifts to charities are a vital source of income for charities. Unfortunately, these charitable legacies can all too often form the basis for disputes.

Disputes can arise in 2 ways:

  1. The charity is named as a beneficiary in the Will, and you are facing a claim by a disgruntled family member or beneficiary seeking to challenge the Will, or
  2. The charity is seeking to challenge a Will which reduces the legacy to your charity or removes the charity from the Will altogether.

We can assist with settling the dispute on terms that maximise the legacy your charity is due to receive. If a settlement cannot be reached, we can also assist you with defending the claim in court if necessary, with minimal reputational damage.

In the UK a Will can only be challenged on the following grounds:

The deceased lacked mental capacity to make the Will

This occurs where the deceased did not have the required level of understanding to make the Will perhaps due to dementia, an injury or the level of medication being taken.

It is most often seen in cases where the deceased was elderly or the Will was made during the last few weeks of life, perhaps while the deceased was in hospital.

If it is suspected that a Will has been made at a time the deceased lacked mental capacity, we are able to obtain the deceased’s medical records and instruct an expert to prepare a report on the deceased’s capacity.

We can also obtain copies of the deceased’s social services and care home records as these can often shed light on the deceased’s state of mind around the time the Will was made.

The evidence of the witnesses to the Will is also important and we can speak to the witnesses and ask appropriate questions.

If the Will was made by a solicitor, we can ask questions of the solicitor regarding the circumstances of how the Will instructions were given and how the deceased’s capacity was checked.

We can obtain copies of all previous Wills.

Sometimes a medical report on capacity will have been prepared when the deceased made the Will, often this will be made by the deceased’s GP.  A report confirming capacity is useful in terms of proving that the deceased had capacity when making their Will and that their Will is valid.

The deceased was unduly influenced to make the Will

This occurs where the deceased has been put under pressure to make their Will. It is more likely to occur where the deceased is elderly or in a vulnerable position, perhaps suffering from a mental illness and reliant on the person exerting the pressure.

Undue influence cases can be difficult to prove, and it is likely that the deceased’s family and friends as well the witnesses to the Will are to be contacted to build up a picture of the case.

We are able to obtain copies of the deceased’s medical, social services, care home records and all previous Wills.

If the Will is a homemade Will, this is more likely to raise suspicions.

It is still possible to claim undue influence even when the Will was made by a solicitor or will writer.

We can ask the solicitor questions about how the Will was made including who contacted them to arrange the Will, who gave the Will instructions and who was present.

If Will instructions were given with beneficiaries or relatives of the beneficiaries of the Will in the room, this will cause concern.

The deceased was unduly influenced and cut out a beneficiary

The basic idea is that if A poisons the deceased’s mind against B, who would otherwise be a natural beneficiary of the deceased’s estate, by casting dishonest aspersions on his character, then the Will is liable to be set aside.

We will require sufficient evidence (e.g., from the deceased’s friends and relatives) to establish that A made a false representation to the deceased about B’s character for the purpose of inducing the deceased to alter his Will and A made such a representation knowing it to be untrue or being reckless as to its truth, and the Will was made only because of the “fraudulent calumny”.

A high standard of proof is needed in such cases and claims of this nature should not be brought lightly.

Fraud or forgery is believed to be involved

In the UK a Will can be challenged on grounds that there was fraud or forgery involved in the making of the Will.

A forged Will is generally one that was made without the deceased’s knowledge.

These cases are difficult to prove, and we will need to obtain evidence if we are defending the Will for your charity.

We are able to contact the witnesses to the Will to check if the deceased signed the Will in front of them and the circumstances in which the Will was signed.

We can instruct a handwriting expert to prepare a report to confirm if the deceased signed the Will.

The handwriting report uses scientific processes to confirm if the deceased signed the Will; it is not just a matter of looking at true signatures of the deceased to see if they match the signature in the Will, including the approximate month and year the Will was signed. This can be helpful in proving that it is not a forgery.

The deceased did not have sufficient knowledge and approval of the contents of the Will

This occurs where the deceased has not fully understood or appreciated the terms of the Will and will often apply where there are suspicious circumstances in the preparation of the Will.

It includes cases where the deceased is unable to read and the Will was not read to them before it was signed, or the deceased did not understand percentages, and these are included in the Will.

Sometimes the wording of a Will can be complicated and there might be a suspicion that the deceased would not have fully appreciated the effect of the Will.

We can ask the solicitor who drafted the Will to answer questions including how the provisions of the Will were explained.

We can also contact the witnesses to the Will to ask if they have any information which may help.

The Will was not signed and witnessed correctly

There is a very strict process concerning how a Will must be signed and witnessed.  The Will must be signed by the deceased in the presence of 2 witnesses. If this process is not followed the Will is invalid.

If any witnesses to the Will are beneficiaries or relatives of a beneficiary named in the Will they will forfeit their gift in the Will.

If the Will looks valid on the face of it but a beneficiary alleges that, for example, the Will was not correctly signed or witnessed or that the deceased did not sign the Will in front of the witnesses, we can help by examining the Will and contacting the witnesses.

If a solicitor or will writer was involved in the preparation of the Will we can write to them asking questions on how the Will was signed and what instructions they gave the deceased on signing the Will.

The deceased revoked the Will

A person who makes a Will can revoke it at any time. A Will cannot be made irrevocable. Certain events, such as divorce or the making of a later Will, can partially or completely revoke the Will by making certain terms of the Will ineffective.

If a person gets married or enters into a civil partnership, his Will is automatically revoked unless it was made in anticipation of the marriage or civil partnership.

Steps in a Will dispute claim

The first step will be the gathering of some initial evidence as mentioned above.

If your charity is disputing a Will, we will tie the case together setting out the legal basis of your claim in a detailed letter, referred to as a letter of claim.  The letter is sent to the Executors of the estate for their reply.

If we are acting on your behalf in defending a Will challenge, we will draft a reply to the letter of claim setting out any evidence and legal arguments we have to counter the challenge.

There is usually a pause here to allow the parties to try and settle the dispute. Mediation may take place at this stage.

Mediation is an effective way of settling Will disputes as it allows the parties to discuss their personal issues and to try and agree a way to divide the estate fairly.

If handled correctly, most Will dispute cases can be resolved without the need for court proceedings and we try wherever possible to settle cases this way as it saves on the huge costs, stress of court proceedings and the reputational issues facing charities in these claims.

If the claim cannot be resolved, one of the parties will usually issue court proceedings and a Judge will decide after hearing all of the evidence at a trial if the Will is valid.

Prior to the trial, we will exchange documents which are relevant to the case and witness statements with the other side.  If not already obtained, we will usually instruct an expert to prepare a report.

Costs if the case goes to trial

The general rule is the court will order the losing party to pay the winner’s costs.

However, the court has discretion to depart from this rule in certain circumstances and may order the costs to be paid from the deceased’s estate, each party to pay their own costs or in unusual cases order the winner to pay the loser’s costs.

The winner will normally only be ordered to pay the loser’s costs where they have acted in a particularly deceitful or aggressive manner or have refused to mediate.

It is therefore imperative that the case is handled correctly from the beginning.

What should you do now?

If your charity suspects that a family member or beneficiary is going to question the validity of a Will, we can assist with advising you on the success of defending such a claim.

We successfully acted for the Executor in defending a Will challenge in the case of Ramsay v Ramsay [2015] All ER (D) 32 (Sep). Click here to read our blog regarding this.

We can take action to try and settle the dispute and if necessary, issue court proceedings on your behalf.

We can also assist in dealing with caveats lodged by beneficiaries to prevent the issue of a Grant of Probate, for example, by writing to the beneficiaries and asking them to remove the caveat they have entered.

The Probate Registry will automatically enter a request for a caveat on payment of a £20 fee and there is no need to produce any evidence in support of the Will challenge at this stage.

The caveat gives the beneficiary time to carry out investigations into the Will. It also allows time for negotiations and perhaps mediation to take place in an attempt to settle the case without the need for court action. We can take steps to settle the case by mediation so that your charity is able to receive the legacy it is due under the Will.

We can assist with resolving disputes regarding the validity of a Will quickly, avoiding any damage to your charity’s reputation and where possible, avoiding court action. If, however, litigation is the only option, we can assist charities with defending the maximum value of the legacy.

Funding options

We offer a number of alternative funding options which include:

  • Fixed fees
  • Hourly rates
  • Conditional Fee Agreements (no win no fee)
  • Contingency fees
  • Before the event insurance

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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In the UK, Wills can be rectified only in relation to two types of mistake:

  1. Mistakes caused by clerical errors; for example, those arising out of office work of a relatively routine nature but also mistakes by a testator in the preparation of his own Will without professional assistance; and
  2. Mistakes arising from a failure to understand the testator’s instructions; however, this does not include a failure to take instructions or to implement such instructions.

The above power to rectify Wills, only applies to the Wills of testators who die on or after 1 January 1983.

The power to rectify can be exercised to rectify a Will so that it can be admitted to probate as the valid Will of the testator.

Time limit for bringing a claim

An application for rectification must be brought within six months of the date when a Grant of Probate was issued. A claim can still be brought outside of this timeframe, but this will require the permission of the court.

If permission of the court is required, the court will take into account the reasons for the delay in making the rectification application and, in particular, whether any prejudice has been caused by the delay and whether the proceedings were pursued in an efficient manner.

Factors the court can take into account

The court will have regard to the following factors when assessing a claim for rectification:

  • The testator’s intentions.
  • Whether the Will was expressed in such a way that it failed to carry out the testator’s intentions.
  • Whether the Will was expressed as a result of a clerical error or the failure on the part of the draftsman to understand the testator’s instructions.

Rectification or Negligence?

In some circumstances, the applicant may consider bringing a claim in negligence against the draftsman instead of a claim for rectification of a Will.

A disappointed beneficiary, including a charity, will be expected to mitigate their loss by bringing a rectification claim as opposed to a negligence claim. However, if there is no prospect of recovering funds as a result of bringing rectification proceedings, the disappointed beneficiaries, including charities, may decide to bring proceedings for negligence.

What can we do for you?

If you are a charity Executor and have in your possession or under your control the probate or letters of administration, we can assist you with defending an application for the rectification of the Will in respect of which probate was obtained.

If you are a charity beneficiary and have had your legacy reduced because of a clerical mistake or a failure to understand the testator’s instructions, we can help you to mitigate your loss by making an application for rectification.

We can obtain the file from the solicitor who prepared the Will, including copies of all correspondence with the testator and contemporaneous notes of all discussions, to check if the Will was made in accordance with the testator’s wishes.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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If your charity has knowledge of or has been informed that it is the recipient of a legacy in a Will, but the Will is either missing or lost we can assist you with making investigations to locate the missing or lost Will.

Missing Wills

We can carry out a search on the Certainty National Will Register for the missing Will to check if the missing Will was previously registered. If the search produces a positive result, it will reveal details of the solicitors or the person in possession of the Will.

If the search fails to produce the missing Will, we can assist with placing an advertisement in the Law Society’s Gazette.

We can also assist you with making enquiries to the deceased’s bank, solicitors or other parties, who might have information about the deceased’s latest Will.

If you have reasonable grounds for believing that someone has knowledge of a Will, we can make an application for that person to be examined in court in respect of the Will and/or an order that they have to lodge the Will with the court.

A copy of the missing Will may be admitted to probate as long as it has not been revoked.

Lost Wills

In English law, there is a presumption that a Will last known to have been in the testator’s possession which cannot be found after death, has been destroyed with the intention of revoking it.

This presumption can be rebutted upon evidence that any loss or destruction of the Will was accidental and was not accompanied by any intention on the testator’s part to revoke it.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Charities often find themselves embroiled in disputes with dependants who bring claims under the Inheritance (Provision for Family and Dependants Act) 1975 (‘the Inheritance Act’).

Who can bring a claim?

  • The spouse or civil partner of the deceased.
  • The former spouse or civil partner of the deceased who has not remarried or entered a subsequent civil partnership.
  • Any person cohabiting with the deceased for at least two years prior to their death.
  • A child of the deceased (includes an adult child).
  • Any person treated as a child by the deceased.
  • Any person who was being maintained by the deceased.

Time limit for bringing a claim

There is a very strict time limit of 6 months from the date of the grant of representation or probate within which to bring a claim under the Inheritance Act. This time limit may be extended by the court in exceptional circumstances.

Factors the court can take into account

The court will have regard to the following factors when assessing a claim under the Inheritance Act:

  • The applicant’s financial resources and needs.
  • The financial resources and needs of any other applicant.
  • The financial resources and needs of the beneficiaries, including charities if nominated as beneficiaries in the deceased’s Will.
  • Any obligations and responsibilities the deceased had towards the applicant, any other applicant and any beneficiary, including charities if nominated as beneficiaries in the deceased’s Will.
  • The size and nature of the deceased’s estate.
  • Any physical or mental disability of the applicant, any applicant or beneficiary, including charities if nominated as beneficiaries in the deceased’s Will.
  • Any other matter, including any conduct the court may consider relevant.

Orders the court can make

The court has a wide discretion to redistribute the deceased’s assets to provide a fair result.

The court can make any of the following orders:

  • An order that the applicant should receive regular payments (known as ‘periodical payments’) from the net estate of the deceased, for as much and for as long as the Judge considers reasonable.
  • An order that the applicant should receive a single lump sum payment from the estate.
  • An order that a property owned by the deceased be transferred to the applicant.
  • An order for the settlement of any property for the benefit of the applicant i.e. an order creating a trust for the applicant.
  • An order for the purchase of property using assets of the estate, and for such property either to be transferred to the applicant or to be held in trust for the applicant’s benefit.
  • An order varying trusts on which the deceased’s estate is held.
  • An order varying any pre- or post-nuptial (or pre- or post-civil partnership) settlement to which the deceased was a party.

The court also has the power to make ‘interim’ orders for a payment or payments from the estate in cases where the applicant is in immediate need of financial assistance, but the court is not yet able to reach a final decision about the order it should make.

The process

We always aim to resolve cases quickly.

If we are acting on behalf of a charity in defending an Inheritance Act claim we will draft a reply to the letter of claim setting out any evidence and legal arguments, we have to counter the claim.

There is usually a pause here to allow the parties to try and settle the dispute.  Mediation may take place at this stage.

Mediation is an effective way of settling Inheritance Act claims as it allows the parties to discuss their personal issues and to try and agree a way to divide the estate fairly.

If the claim cannot be resolved, we will defend any court proceedings and a Judge will decide after hearing all of the evidence at a trial which order to make.

Costs if the case goes to trial

The general rule is the court will order the losing party to pay the winner’s cost.

However, the court has discretion to depart from this rule in certain circumstances and may order the costs to be paid from the deceased’s estate, each party to pay their own costs or in unusual cases order the winner to pay the loser’s costs.

The winner will normally only be ordered to pay the loser’s costs where they have acted in a particularly deceitful or aggressive manner or have refused to mediate.

It is therefore imperative that the case is handled correctly from the beginning.

Funding options

We offer a number of alternative funding options which include:

  • Fixed fees
  • Hourly rates
  • Conditional Fee Agreements (no win no fee)
  • Contingency fees
  • Before the event insurance

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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In order to bring a proprietary estoppel claim, a claimant will have to show:

  • That there was a genuine assurance and/or promise by the deceased; this can be both verbal or written.
  • That the claimant did something in reliance on that promise.
  • That what the claimant did can be regarded as having incurred a burden or a detriment.
  • The claim can also arise if there was a promise of a gift on death and before death the gift has been retracted.

If your charity finds itself defending these types of claim you should contact us immediately as strict time limits apply.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Most commonly, charities are nominated as the residuary beneficiary in Wills. As a result, they might find themselves dealing with uncooperative Executors or Administrators (‘Personal Representatives’), who do not administer the estate in the best interests of the charities.

The job of a Personal Representatives is to ensure the deceased’s estate is administered correctly and the beneficiaries receive their share of the estate promptly.

The Personal Representative will manage the estate and undertake tasks such as closing bank accounts, valuing or selling properties, and arranging the deceased’s funeral. The Personal Representative uses any available cash in the estate to pay bills and debts and then divides what is left between the beneficiaries of the Will.

If something is left to a person who cannot inherit immediately (e.g., because that person is a child or vulnerable adult), someone must be named as their trustee, to take care of that gift until it can go to the intended person. The trustee’s main role is to ensure that the assets are protected.

Personal Representatives can be professionals (e.g., a firm of solicitors) but they are often family members or friends. They can also be beneficiaries, including charities if nominated as beneficiaries in the deceased’s Will.

Personal Representatives owe fiduciary duties to the beneficiaries, including charity beneficiaries, to ensure the estate is administered promptly, the maximum sale price for assets is achieved and all debts and liabilities are paid; however, they can and do make mistakes.

The sort of issues that can arise include:

  • Selling property for less than it is worth because of poor valuations.
  • Not selling property quickly enough, causing it to be sold for less than it could have been worth.
  • Failing to insure property.
  • Paying money to the wrong people.

Occasionally, a family member or friend acting as a Personal Representative might act in their own interests, in breach of their duties.

What can we do for you?

If your charity is a beneficiary of an estate and you are unhappy with the way a Personal Representative is handling matters and/or there is evidence that they have made a mistake or deliberately acted with the result that the estate has lost value, you may be able to apply to the court to have them removed from their role and hold them personally liable for any loss.

Maladministration of an estate can significantly impact on the amount of the legacy your charity receives. We can assist if your charity has lost out because a Personal Representative has not acted properly, by making applications to court for their removal and to recoup any losses to the estate.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Most commonly, charities find themselves in the shoes of residuary beneficiaries rather than Executors or Administrators (‘Personal Representatives’) meaning the charity will not have direct access to the estate information and is reliant on Personal Representative to manage the estate correctly.

A Personal Representative must keep estate accounts and a full list of inventories, and these should be made available for inspection by a beneficiary, including a charity.

If your charity is dealing with a Personal Representative who declines or unreasonably delays to provide accounts we can assist your charity with obtaining the estate accounts.

A Personal Representative is under a duty, when required to do so by court, to provide a full inventory of the estate and an account of their administration. We can also assist with making these court applications.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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The Court of Protection has the power to authorise the making of a Statutory Will for someone who has lost testamentary capacity to make a Will themselves.

The incapacitated person may lack capacity for many different reasons including through physical or mental illness, such as Dementia and Alzheimer’s disease, learning disability or brain damage following a road or other accident.

If an incapacitated person makes a Will, it could subsequently be challenged on the grounds of lack of testamentary capacity and, if the challenge is successful, the Will could be set aside. In such cases, the estate will be distributed as per any previous Will or, if there is no previous Will, as per the rules of intestacy.

Consequently, a Statutory Will can be an extremely useful tool as, once made, the Statutory Will has the same effect as any other Will and, because it is made with the authority of the Court, it cannot be challenged in the same way as a normal Will.

A Statutory Will is made with the authority of the Court following an application by an interested party. The interested party could be a family member, beneficiary, attorney, deputy or any other person with an interest in the Will being made.

Reasons for making a Statutory Will:

  • An existing Will may need to be changed due to changing circumstances of the incapacitated person.
  • A change in the circumstances of a beneficiary(s), including charities, under a previous Will.
  • A change in the relationship of the incapacitated person and the beneficiary(s), including charities, under a previous Will.
  • A change in the relationship of the incapacitated person and the proposed new beneficiary(s), including charities.
  • The family situation is complicated, and the interested party wants to avoid a dispute after death or may have doubts over the validity of an existing Will.
  • The interested party wants to make sure the estate is dealt with in as tax efficient way as possible.
  • A Will has never been prepared before.
  • Application for a Statutory Will
  • The application should set out all the financial circumstances of the incapacitated person as well as the arrangements currently made for their care. It should also explain who forms part of their family and the nature of the relationships.
  • A doctor’s report is required confirming the person lacks capacity to make a Will.
  • A draft of the proposed Will setting out how the estate will be divided in the event of the incapacitated person’s death will also be provided to the Court.

What can we do for you?

We have years of experience preparing and submitting Statutory Will applications.

We will instruct an appropriate doctor to prepare the required medical report confirming lack of capacity and work with you to prepare the application papers, draft a suitable Will, gather all the evidence in support and ensure all the required people are served with the application.

If anyone disputes the proposed Will, we will work with you to achieve a sensible outcome in the most cost-effective way possible.

Our specialist tax advisors will ensure the Statutory Will is tax efficient.

The court will have to be satisfied that the proposed Will is in the best interests of the impaired person. Their wishes and feelings are extremely important, and we take the time to obtain these as well as listen to your views and ensure these are all taken into account.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Negligence claims against solicitors, Will winters and other professionals will most often arise in the following situations:

  • There was a delay in drafting a Will and the testator died before the Will was signed
  • A Will is made for a testator who lacked mental capacity, knowledge, and approval of the will, or was unduly influenced
  • There is an error in the way the will was drafted, and it does not accurately reflect the wishes of the testator
  • Incorrect tax advice was given causing loss to the estate

If your charity has lost out because of negligence the charity may be able to bring a claim for the loss is has suffered.

If this situation sounds familiar you should contact us immediately as strict time limits apply.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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What is financial fraud or abuse?

It is a concerning reality that financial abuse of the elderly is happening on a large scale across the world. Recent data indicates that those aged 65 and above are often the main target of financial abuse.

Financial abuse comes in many forms. Some typical examples might include:

  • The misuse of a person’s funds or assets
  • Excessive gifts
  • Mixing of money
  • Not acting in a person’s best interests when managing their affairs
  • Unpaid bills (particularly care home fees)
  • Opening a credit card account or making loan applications for the person
  • High risk investments
  • Not keeping appropriate records

Who can be guilty of financial abuse?

Sadly, it is often family members who commit financial abuse. A once trusted son or daughter might become greedy and decide that he or she should benefit more than their siblings from their parent’s estate, or that they are entitled to receive their inheritance in advance.

Individuals who were not previously involved in the person’s life may suddenly insert themselves into their life to the exclusion of others. This is often a red flag when it comes to spotting financial abuse and it can have an impact both during the elderly person’s lifetime (when they are vulnerable to having their assets stolen by the abuser) and after their death (for example, if the elderly person was pressured into making a new Will leaving their estate to the abuser after the elderly person’s death).

In addition, those in positions of trust (e.g., an attorney or carer) can also be guilty of financial abuse because they see the elderly person as an easy target.

In short, anyone with a position of influence over the elderly person is capable of financially abusing them, especially where they have the ability to control and/or access the elderly person’s finances.

Who can be liable in a financial fraud or abuse case?

Anyone who owes a duty of care to the victim – this can include an attorney, court appointed deputy, carer or trustee. A person who has a duty of care to a vulnerable person under their charge can be liable for breach of fiduciary duty if they have abused their position.

Any person who has coerced the victim into doing something which the victim did not want to do – for example writing a Will leaving everything to the coercer. The coercer may be guilty of undue influence.

Third parties – in some situations a third party (such as a bank) may be liable for loss to the elderly person (e.g., if they failed to ensure that the elderly person consented to payments taken from their account).

How to spot financial fraud or abuse

When there is financial abuse or fraud this usually means that the victim is going without, because their money is not being used for their benefit. It also means that by the time the victim dies, their estate has often been diminished, leaving little or nothing for the beneficiaries of their Will.

Having some background regarding the deceased’s circumstances before they died can help you to start to piece together the facts which could help you to build a case regarding financial fraud or abuse (or indeed allay your concerns in this regard).

Both court-appointed deputies and attorneys appointed under an enduring or lasting power of attorney (‘EPA/LPA’) must act in the best interests of the person who lacks capacity (‘P’).

Examples of action which would not be in P’s best interests include: failure to pay their care fees, medical fees and/or bills, cancelling their direct debits for regular donations to a charity without explanation, opening a credit card account and/or making loan applications in their name, making high risk investments or investing in a business that the deputy or attorney owns or has an interest in.

If the person who received the large payment claims that it was a gift then obtaining evidence of P’s capacity at the time of the alleged gift can help to establish whether fraud or financial abuse may have occurred. If P lacked capacity to make the alleged gift then it will be void.

If the deceased lacked capacity at the time of an alleged gift, then the court’s permission would be required for any non-customary gifts (e.g., large gifts and/or gifts other than for birthdays, weddings, Christmas and/or other religious holidays etc). Spotting large payments on bank statements can often help to uncover financial abuse. Enquiries should be made into any large payments and, where the recipient claims that the payments were made as gifts, further enquiries should be made into whether the court’s permission was sought prior to making the gift.

Requesting copies of the Will file, estate accounts and the deceased’s bank statements for the 7 years prior to their death can help you to identify any big changes in the deceased’s spending patterns and/or financial position in the years leading up to their death. It can also help you to identify any unusual bank transfers and unauthorised lifetime gifts.

What can you do once evidence of financial fraud or abuse is uncovered?

If you spot evidence of financial abuse, it is advisable for you to instruct a solicitor to investigate and, if appropriate, to recover the misappropriated assets. Such cases can be complex and time-sensitive, and they can require swift action to be taken in order to prevent the further dissipation of assets by the abuser.

Initial investigations

It is important to undertake initial investigations to try to establish whether the abuser has any assets against which to enforce any order you might obtain against them.

If you have the abuser’s address, then you can start by obtaining OCE’s for the address to establish whether the abuser owns the property. The OCE will also show whether the property is in joint names and whether a mortgage or any other legal charges are registered against the title.

Your solicitor may suggest instructing a private investigator or tracing agent to obtain information about the abuser through legitimate means. The cost of instructing a private investigator is likely to be minimal (at least in the first instance) so it is a step worth taking and the investigator is likely to be able to obtain information that you will struggle to obtain through simple online searches.

Application to the court

Freezing injunction

If there is sufficient evidence to suggest that the abuser may attempt to dispose of their assets to put them out of your reach (e.g. you discover that the abuser’s property is being marketed for sale) then you may need to urgently apply for a freezing injunction.

A freezing injunction is a remedy which prevents assets being removed from the jurisdiction and prevents anyone dealing with them.

A freezing injunction can only be granted where there are assets to which the injunction can attach and where there is a serious risk that the defendant will deal with or remove their assets before the claimant can obtain judgment and enforce it. The freezing injunction can attach to the abuser’s bank accounts to prevent the abuser spending excessive sums of money while the order is in place. It can also attach to any properties registered in the abuser’s name to prevent them from selling, transferring, or otherwise dealing with the property pending the outcome of the proceedings.

Disclosure order

It may be necessary to apply for a disclosure order against a third party, for example a bank, in order to obtain disclosure of the abuser’s historic bank statements in order to identify suspicious transactions and establish whether these can be matched with suspicious transfers on the deceased’s bank statements. The bank statements could also help lead you to evidence of additional financial abuse (e.g. the purchase of property using the deceased’s money).

Account and Inquiry

You may seek an account of the abuser’s dealings with the elderly person’s affairs with consequential inquiries and directions. This remedy will be appropriate if the abuser acted as the deceased’s attorney during their lifetime and/or in any other fiduciary capacity.

You may also seek an order that the abuser pay the sum found due to the estate upon the taking of the account and inquiries.

Declaration

If there is sufficient evidence, you may be able to apply to the court for a declaration that the deceased (and thus their estate) is the sole beneficial owner of a property held in the abuser’s name. This would enable you to bring the asset back into the deceased’s estate for the benefit of the charity and any other beneficiaries under the Will.

You can also obtain an order transferring the legal title in the property into the names of the PR’s so that they can sell the property for the benefit of the charity and other beneficiaries under the Will (as appropriate).

Damages for breach of fiduciary duty

In addition (or as an alternative) to the above, you may seek damages (in a sum to be assessed) for breach of the abuser’s fiduciary duty.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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The Court of Protection makes decisions on financial and/or welfare matters for people who lack the mental capacity to make decisions at the time they need to be made.

The Court of Protection is also responsible for giving permission to enable an individual to make one-off decisions or ongoing decisions on behalf of an incapacitated person if the individual is appointed to act as the Deputy for people who lack mental capacity.

We can also represent charities who find themselves embroiled in Court of Protection proceedings and assist with contentious Court of Protection matters where there are disputes or disagreements surrounding an incapacitated person.

Further, incapacitated people are very often the victims of financial abuse, which is the term used when somebody is stealing or defrauding another person of their money or property.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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We appreciate the importance of a legacy to a charity, which is a key source of funding for the charity, and the harmful impact that a trust dispute may have on the legacy by reducing the legacy.

We can help charities to resolve trust disputes in order to protect the legacies they are entitled to receive as beneficiaries of estates by:

  • Reviewing the management of assets of the estate, including how funds are being spent, and addressing concerns over the administration of trusts
  • Bringing claims against trustees for mismanaging trust assets and funds to ensure that charities receive their rightful share from an estate and recover any losses caused by the actions of trustees

What is a trust?

A trust is a legal arrangement where someone or a group of people are made responsible for assets for the benefit of another group of people.

The people assigned to administer the trust are known as trustees and those benefiting the beneficiaries, which usually include charities. The person who sets up the trust is known as the settlor.

The assets are held in the trust and will be released at the desired time. This might be on a desired date or event such as someone turning 18 and becoming an adult.

Breach of trust

We act for beneficiaries, including charities, in bringing claims against trustees where they are in breach of trust.

We also act for trustees, including charities, in defending such actions.

A breach of trust is an act (or a failure to act) by a trustee that is not authorised either by the trust document or by law.

Typical examples include:

  • Where a trustee breaches a fiduciary duty such as the duty to bring trust property under their control and act impartially.
  • Where a trustee distributes trust assets to a beneficiary, who is not entitled to them under the terms of the trust document.
  • Where a trustee invests the trust fund in a way not permitted by his express or statutory powers of investment.
  • Where a trustee breaches a fiduciary duty such as the duty not to profit from the trust, for example, by selling one of his own assets to the trust.
  • The trustee in the exercise of their power or discretion acts otherwise than with absolute honesty or fails to observe the required standard of care

Loss arising from the breach of trust

To substantiate an action for breach of trust, a beneficiary, including a charity, will normally have to demonstrate that loss has been caused. We will be able to advise on this once we have spoken to you and taken some details.

The trustee’s liability will be to restore the trust fund to the position it would have been in if the breach had not occurred.

What action can be taken to remedy a breach of trust?

  • We are able to issue court proceedings against the trustees to recover the loss from them.
  • We can obtain interim injunctions to protect the trust whilst the action proceeds.
  • We are able to obtain court orders for the removal of trustees from acting.

Defences

Several defences are available to trustees:

  • The trust document may authorise the trustee to do something that is not permitted by the general law. For example, self-dealing may be allowed subject to conditions, and will then not be a breach of trust if those conditions are met
  • The trust document may excuse a trustee from liability for something that is a breach of trust, this is referred to as a trustee exemption or exoneration clause

However, trustees have a minimum duty to perform the trusts honestly and in good faith for the benefit of the beneficiaries. An exemption clause cannot excuse a trustee who either knows that his act or omission is contrary to the beneficiaries’ interests or is recklessly indifferent to the beneficiaries’ interests.

We are able to review the trust document and advise if any defence is available to the trustee.

Setting a trust aside

We can also advise as to whether a trust can be set aside.

Recent court action in various jurisdictions have demonstrated that trusts which at first sight appear to be valid may be set aside and the assets claimed by relatives, creditors and the Revenue where:

  • The assets are situated in a jurisdiction which does not recognise trusts.
  • The trust deed is in effect a will which is incorrectly executed.
  • The trust was intended to defraud creditors.
  • The trust property can be clawed back under anti-avoidance legislation.
  • The trust is found to be a “sham”, such as where the settlor retains overall control of both the trust and the assets of the trust.
  • The trust lacks so many of the usual incidents or characteristics of a trust that it was in reality a different legal arrangement.
  • There has been a clear breach of the fiduciary duty of trustees, company directors, agents or protectors.
  • The trust fails to appoint any validly appointed trustees.

Time limits for bringing a claim

There are different time limits for bringing different types of claims. The time limit is known as the ‘limitation period’.

For most breach of trust claims the limitation period is normally 6 years from the date of knowledge of the breach unless fraud is alleged.

If you think you have claim you should act quickly in seeking legal advice to find out which limitation period will apply to your claim.

Funding options

We offer a number of alternative funding options which include:

  • Fixed fees.
  • Hourly rates.
  • Conditional Fee Agreements (no win no fee).
  • Contingency fees.
  • Before the event insurance.

What should you do now?

Whether you are a charity beneficiary unhappy with the way your trust is being handled or a charity trustee in need of some advice, we are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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A person must always have a domicile but can only have one domicile at any given time.

A person is domiciled in the country in which they are considered by English law to have their permanent home, but not always. A person may also be domiciled in a country where they do not have their permanent home. Domicile can be a difficult point to determine as a number of factors come into play.

Domicile can impact on Will dispute cases in several ways.  For example, in order to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘Inheritance Act’) the deceased must be domiciled in England and Wales at the date of death. If the deceased lived outside England and Wales and was domiciled anywhere else, a claim under the Inheritance Act will fail.

It will also impact in which jurisdiction will hear a Will dispute case which can have a crucial impact on the case.

Bolt Burdon recently successfully acted in the case of Rehman v Hamid [2019] EWHC 3692 (Ch) and one of the determining points of the case was the court resolving  the issue of domicile in our client’s favour, accepting that Mrs. Ali’s domicile of origin was Pakistan. You can read Alexa Payet’s blog on the case here.

We can assist a charity with bringing or defending claims alleging that the deceased acquired a different domicile. We can also clarify any issues relating to domicile.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Trusts and estates are complex species and there are times when interpreting a trust or estate property might be a challenging task. This might be owing to the fact that the language used to describe the trust or estate property is ambiguous or could be interpreted in more than one way.

It is very important that the trust or estate property is ascertained correctly, because if it is not, there will be major consequences for the beneficiaries, who might lose out on what they might have received, or for the Executors, who might be held personally liable for any loss caused to the estate or trust property.

If you are a charity beneficiary and are concerned that you might have lost out on a share of the trust or estate property because of how it was interpreted, or you are a charity executor and are not able to properly ascertain the trust or estate property, either way you will need to seek some legal advice.

We can provide you with clarification in relation to a trust or estate property and advise you if any mistake has been made and how it can be rectified in order to avoid potential dispute, loss or liability.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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Cy-pres applications (or ‘near to’) allow the wishes of a donor to a charity to be carried out even when the original purpose of the gift has failed. It is a requirement when making a cy-press application that the new purpose of the gift should be as close as possible to the original purpose.

It is noted that the principle of cy-près can only be applied to charitable dispositions and, therefore the purpose of the institution to which the disposition has been made must be charitable.

We can assist charities with making cy-pres application to ensure that gifts made to them in Wills go to the charities even if the gifts have lost their original purpose as long as their new purpose is very close to the original one.

We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.

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