FOUR SHIRES v BUSINESS
SPRATT ENDICOTT ADVISES ON PROVISION FOR FAMILY AND DEPENDANTS
We live in an increasingly litigious society and the estates of deceased persons are not exempt. Indeed, such proceedings are on the increase.
Essentially there are two different forms of proceedings when estates are involved. The first of these is an attack on the Will itself, where there is an allegation that the testator was not of sound mind, acted under duress, was not aware of his or her estate and those claimants to it. Generally speaking the proceedings commence with the entry of a Caveat into the Probate Registry the purpose of which is to prevent a Grant of Probate issuing. There follows the usual ritual dance of a Warning to the Caveator and a response, and then battle commences. In such proceedings it is normally the case that the person attacking the Will must prove their case, perhaps through access to medical records, witness statements and
WHERE THERE’S A will
so on. The other form of attack is not against the Will but against its provisions. There are six forms of claimant: a spouse, a former spouse who has not remarried, a child, a child of the family (it could be a step child or adopted child), a person who was maintained by the deceased immediately before his or her death and finally a person with
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whom the deceased had been living as husband and wife for two years before death (although in law no such person exists). Here the matter is commenced with a Standing Search, a non hostile action. This is important because under the terms of the Act proceedings have to be issued within six months of the date of the Grant of Probate or Letters of Administration if it is an intestacy. That is accompanied by an Affidavit setting out the facts and again the ritual dance proceeds. There is usually an exchange of witness statements and evidence, and the matter can be mediated to avoid Court proceedings.
The effect, of course, is to prevent the administration of the estate until matters are settled, and very often these actions have little more than a nuisance value to them. In common with most contentious
matters they are both expensive and time consuming. The rules both of conduct and evidence are complicated and so great care needs to be taken with any communication between the parties, as that can in some cases be called into evidence.
As always with such matters it is important early on to seek expert legal advice. For further advice, please contact David Endicott, Managing Partner, on 01295 204005 or email David at
dendicott@se-law.co.uk.
COTSWOLD family law Solicitors
DIVORCE & SEPARATION COLLABORATIVE LAW CHILDREN ISSUES WILLS & PROBATE
01608 686 590
info@cotswoldfamilylaw.co.uk www.cotswoldfamilylaw.co.uk
building a better future MARCH 2012 v FOUR SHIRES 75
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