Probate, inheritance and trust dispute barrister advice

Disputes following a death can involve questions about the validity or meaning of a will, entitlement to inherit, the conduct of executors or the management of trust assets. These disputes are often legally complex and arise at an already difficult time for families.

The barrister can help you understand your legal position, assess the strengths and weaknesses of your case and decide what practical steps to take next.

Probate, inheritance and trust disputes we may be able to help with

Challenges to the validity of a will

A will may be challenged where there is reason to believe that it does not represent a legally valid expression of the deceased person’s intentions.

Advice may cover:

  • whether the will was executed correctly;

  • whether the person making the will had testamentary capacity;

  • whether they knew and approved the contents of the will;

  • allegations of undue influence;

  • fraud, forgery or fraudulent calumny;

  • suspicious circumstances surrounding the preparation of the will;

  • the role of the person who prepared or witnessed it;

  • the effect of an earlier will; and

  • the evidence required to establish or defend a challenge.

Testamentary capacity

A person must have the necessary mental capacity when making a will.

A barrister may advise on:

  • the legal test for testamentary capacity;

  • the effect of dementia or other illness;

  • whether the deceased understood the nature and effect of the will;

  • whether the deceased understood the extent of their estate;

  • whether potential beneficiaries were properly considered;

  • the relevance of medical evidence;

  • evidence from the will writer, witnesses, family members or carers; and

  • whether the available evidence supports or undermines the will.

Undue influence and suspicious circumstances

A will may be challenged where it is alleged that another person overpowered the deceased’s wishes or improperly influenced its contents.

Advice may concern:

  • the relationship between the deceased and the alleged influencer;

  • dependency, vulnerability or isolation;

  • involvement in arranging or preparing the will;

  • substantial or unexpected changes from an earlier will;

  • exclusion of close family members;

  • the deceased’s stated intentions;

  • suspicious conduct before or after the death; and

  • the evidence required to prove or defend the allegation.

Improper execution of a will

A will must comply with legal formalities to be valid.

A barrister may advise on:

  • whether the will was signed by the deceased;

  • whether the signature was properly witnessed;

  • whether the witnesses were present as required;

  • alterations or additions to the document;

  • missing or incomplete pages;

  • uncertainty about the original will;

  • whether a copy will may be admitted to probate; and

  • the effect of any apparent procedural defect.

Disputes about the meaning of a will

Even where a will is valid, disagreement may arise about what particular words or provisions mean.

Advice may cover:

  • the interpretation of gifts and descriptions of beneficiaries;

  • ambiguous or inconsistent wording;

  • mistakes in the drafting of the will;

  • whether a gift has failed;

  • the effect of a beneficiary dying before the deceased;

  • uncertainty about property or assets referred to in the will;

  • competing interpretations advanced by beneficiaries;

  • applications for the court to determine the meaning of the will; and

  • whether evidence outside the will may be considered.

Claims for reasonable financial provision

Certain people may be able to bring a claim where a will, or the intestacy rules, does not make reasonable financial provision for them.

A barrister may advise on:

  • whether you may be eligible to bring a claim;

  • claims by spouses or civil partners;

  • claims by former spouses or civil partners;

  • claims by cohabiting partners;

  • claims by children or those treated as children of the family;

  • claims by people maintained by the deceased;

  • the applicant’s financial needs and resources;

  • the size and nature of the estate;

  • the competing needs of other beneficiaries;

  • the deceased’s responsibilities and reasons for their decisions; and

  • the provision the court might consider appropriate.

Intestacy and entitlement to inherit

Where someone dies without a valid will, their estate is distributed according to the intestacy rules rather than according to informal wishes or family expectations.

Advice may concern:

  • who is entitled to administer the estate;

  • which relatives are entitled to inherit;

  • the entitlement of a spouse or civil partner;

  • the position of children and other relatives;

  • questions of parentage or family relationships;

  • partial intestacy where a will does not dispose of the whole estate;

  • competing applications for letters of administration;

  • jointly owned property; and

  • disputes about whether an asset forms part of the estate.

Caveats and probate applications

Where there is a genuine dispute about the validity of a will or who is entitled to take a grant, it may be necessary to prevent a grant from being issued while the dispute is investigated.

A barrister may advise on:

  • whether entering a caveat is appropriate;

  • the effect of a caveat;

  • challenges to a caveat;

  • warnings and appearances;

  • competing probate applications;

  • whether a grant has already been issued;

  • applications to revoke a grant;

  • steps required to preserve the estate; and

  • the risk of legal proceedings and costs.

Executors and administrators

Executors and administrators must collect the estate assets, pay liabilities and distribute the estate in accordance with the will or intestacy rules.

Disputes may involve:

  • delay in obtaining probate or administering the estate;

  • failure to provide information or estate accounts;

  • disagreement about the value or sale of assets;

  • alleged favouritism between beneficiaries;

  • conflicts of interest;

  • disputed expenses or payments;

  • premature or incorrect distribution;

  • failure to protect estate property;

  • applications for directions; and

  • the removal or replacement of an executor or administrator.

Ownership of estate assets

Disagreement may arise about whether property belongs to the estate or to another person.

Advice may cover:

  • jointly owned homes or bank accounts;

  • legal and beneficial ownership;

  • lifetime gifts;

  • declarations of trust;

  • assets transferred before death;

  • property held for another person;

  • promises concerning homes, farms or businesses;

  • disputed personal possessions;

  • recovery of estate assets; and

  • whether a transaction should be challenged.

These disputes may involve principles of property, trusts and proprietary estoppel as well as probate law.

Disputes between trustees and beneficiaries

Trustees must exercise their powers for proper purposes and comply with the terms of the trust and their legal duties.

A barrister may advise on:

  • the interpretation of a trust deed or will trust;

  • the nature and extent of a beneficiary’s interest;

  • the exercise of trustee powers and discretions;

  • requests for trust information or accounts;

  • the management, investment or distribution of trust assets;

  • conflicts of interest;

  • disagreement between co-trustees;

  • applications for directions;

  • the appointment, retirement or removal of trustees; and

  • disputes about bringing a trust to an end.

Breach of trust and misuse of trust assets

A trustee may face a claim where trust property has allegedly been misapplied, improperly invested or dealt with in breach of duty.

Advice may concern:

  • whether a breach of trust has occurred;

  • unauthorised payments or transfers;

  • misuse or loss of trust property;

  • failure to account;

  • improper personal benefit;

  • investment decisions;

  • tracing or recovering assets;

  • compensation or restoration of the trust fund;

  • possible defences available to the trustee; and

  • the responsibility of other trustees, recipients or third parties.

What advice can the barrister provide?

Depending on the questions accepted, the barrister may help you understand:

  • your rights as an executor, administrator, trustee or beneficiary;

  • whether there may be grounds to challenge or defend a will;

  • whether you may have an inheritance or financial-provision claim;

  • the proper interpretation of a will or trust;

  • the strengths and weaknesses of your position;

  • what documents and evidence may be required;

  • any important limitation or procedural deadlines;

  • the remedies or court orders potentially available;

  • whether negotiation, mediation or court proceedings may be appropriate; and

  • the practical steps you should consider taking next.

Barristerly is an independent booking and introduction service connecting clients with participating independent Public Access barristers. Barristerly is not a firm of solicitors or a barristers’ chambers and does not itself provide legal advice.