Maninder Mann - Franklins Solicitors

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The case of Clitheroe v Bond is a dispute between two siblings concerning the validity of two Wills executed by their late mother. The question for the Court was whether their late mother died intestate or whether the Wills executed were valid. If the latter, it would mean the entire estate, comprising of £400,000.00, would pass to the son in its entirety.

At the original trial, the original Wills were not admitted on the grounds of incapacity. This was as a result of the late mother’s affective disorder, including complex grief reaction, instance delusions and depression.

The son appealed this decision arguing the deputy master had applied the incorrect test. The son also argued the wrong approach for delusions had been applied. In essence, the basis of the appeal was that the incorrect test had been applied for testamentary capacity.

The High Court have provided clarification on the correct test to apply when assessing testamentary capacity.

Mrs Justice Falk confirmed the correct test for assessing whether a testator had the capacity to make a Will as set out in the 19^th Century case of Banks v Goodfellow. Mrs Justice Falk further clarified the position in regards to delusions.

As a result of this clarification, an adjournment of three months was provided to the parties to allow them to reflect on their positions and see if there was an opportunity to reach an agreement.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

What is a Personal Representative?

Personal Representatives are individuals who have legal authority and responsibility to administer a deceased’s estate. There are two types of Personal Representatives; an Executor and an Administrator.

An Executor is appointed under the last Will and Testament of a deceased. In absence of such a document, then an Administrator is appointed dictated by the Rules of Intestacy.

Personal Representatives have an overriding duty when administering an estate and their duty falls within the scope of Section 25 of the Administration of the Estate Act 1925 (“The Act”).

What does a Personal Representative have to do?

In essence, a Personal Representative has a duty to collect in the real and personal estate of the deceased and administer it according to the law.

What if a Personal Representative is not acting in accordance with their duties?

If a Personal Representative fails to act in accordance with their duties then a beneficiary, co-executor or co-administrator can force that individual to act in accordance with their duties as prescribed by law.

What steps should I take if a Personal Representative is not acting in accordance with their duties?

There are many ways in which a Personal Representative can be found to not fulfil their duties. If this is the case, the first step is to write to the individual directly requesting that an account of the administration of the estate be provided as soon as possible.

If the response is not satisfactory, a beneficiary or co-executor/co-administrator has the right to apply to Court to remove and substitute them.

How can I remove a personal representative?

An application can be made requesting the Court to exercise its discretion in either appointing, removing or substituting a Personal Representative.

Such an application will require detailed reasoning on why the Court should exercise its discretion in such a way and that there is a threat to the proper administration of the estate if the Court does not exercise its discretion in the way requested.

These types of applications are not straightforward as there is a requirement to show that the Personal Representative is not acting in accordance with their duties and requesting the Court to remove them.

The Court will need to be satisfied that the Personal Representative is unsuitable for such a position as a result of serious misconduct. Section 50 of the Administration of Justice Act 1985 provides the High Court with the discretionary power to appoint a substitute or terminate the appointment of a Personal Representative.

This application will need to be made in accordance with Part 57 of the Civil Procedure Rules 1998 which sets out the requirements that are needed when making such an application.

What if a Personal Representative agrees to be removed?

If a Grant has been extracted and the Personal Representative no longer wants to act or refuses to do so then either they or someone else can make an application for the revocation of the Grant under Rule 41 of the Non-Contentious Probate Rules 1987.

It is important to note that such an application can only be made by the Personal Representative themselves or by someone else enclosing the consent of the Personal Representative.

For further advice and assistance contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 / 01908 660966 or email maninder.mann@franklins-sols.co.uk.

So you have been left nothing or not as much as you thought you would get – what rights do you have?

There are two ways an individual can dispose of their estate: by executing a Will or in absence of this document then in accordance with the Intestacy Rules.

What can I do?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependent on a deceased prior to their death.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, cohabitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories to be satisfied in order to be eligible to present a claim to Court and these are as follows:

The deceased must have been living in England and Wales at the time of death;
As an applicant, you must fall within one of the categories as outlined in Section 1 (1) of the Act (listed above); and
If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance.

The factors the Court will consider are set out in Section 3 (1) of the Act and they will take into account the following: the financial needs and resources of the applicant, any other applicant, any other beneficiary and the size and nature of the estate.

The Court will also consider if the deceased had any obligations and responsibilities towards the applicant or any other beneficiary of the estate as well any physical or mental disability of the applicant.

Will the Court apply the factors under Section 3 (1) of the Act to each applicant the same?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

The age of the applicant and the duration of the marriage;
The contribution the applicant made to the welfare of the family;
What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

You may not have a choice.

What is Arbitration?

Arbitration is a strand of Alternative Dispute Resolution which has a contractual and judicial element attached to it.

The decision to refer a dispute to Arbitration will ordinarily stem from an agreement between the disputing parties, otherwise known as the “Arbitration Agreement”, where it states that in the event of a dispute, the matter is referred to Arbitration.

Arbitration itself means that when a dispute is initiated through this process, it will be referred to a Tribunal who will have the requisite power to hand down a decision that binds the parties.

What will the Arbitration Agreement state?

Subject to the agreement itself, the Arbitration Agreement will set out details of the process out further and in particular:

How many Arbitrators will be needed;
Whether the Tribunal will consist of one individual or three,
Costs of the Arbitration process; and
When the Arbitration will be held.

Why should I Arbitrate when I can go straight to Court?

The Court process is lengthy, costly and uncertain whereas the Arbitration process is far more attractive.

Once Arbitration proceedings have been initiated, the process from initiation to a hearing is rather swift.

This will have a significant impact for both parties in that there is certainly with time and legal costs. This is because once the matter proceeds to a final hearing and an award produced, such an award is binding on the parties unless challenged.

At Franklins, we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. For advice, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Running a Franchise and having a dispute with your Franchisor can be extremely stressful. The time, energy and money invested into your business means any dispute with your Franchisor should be handled carefully.

What sort of disputes can arise between Franchisor and Franchisee?

The types of disputes that can arise are as follows:

Upon making enquiries with the Franchisor, the Franchisee now believes the profit being made is not what was promised at the outset;
The Franchisee feels there is lack of or no support from the Franchisor which again was promised at the outset and outlined in the terms of the Franchise Agreement;
The Franchisor has concerns that the Franchisee is not following the protocol required which is having a detrimental effect on the performance of the business and profits made.

All of the above can lead to claims for a breach of contract and/or misrepresentation.

I am Franchisee and I have a dispute, what should I do?

As a Franchisee you should always maintain dialogue with the Franchisor and aim to resolve the dispute as swiftly as possible.

It would be prudent to obtain legal advice as soon as possible. This is so dialogue can be initiated straight away and your Franchise Agreement reviewed.

The Franchise Agreement is the legal document which governs your relationship between you and your Franchisor. There will be a series of clauses which set out what your respective duties and obligations are to one another.

I have a dispute, you have my Franchise Agreement, what next, Court?

Not necessarily.

In the terms of the Franchise Agreement there ordinarily is a clause which sets out what steps are to be taken in the event there is a dispute. Such steps would suggest the parties consider Alternative Dispute Resolution such as arbitration and mediation to ensure the dispute can be resolved promptly and cost effectively.

If, however, such steps come to no avail then recourse to the Courts may be your only option left.

The last thing any Franchisee wants is to have dispute with their Franchisor. Disputes of this nature can strain relationships between commercial partners whilst they still have obligations to each other. It can also transform a fully functioning and profitable business into a stressful place affecting all the associated stakeholders. Therefore, careful thought and planning must be put into finding a resolution to avoid such a strain and more importantly prevent costs spiralling out of control.

Here at Franklins Solicitors LLP we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. For advice and further information, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

It is possible to stop the distribution of inheritance to beneficiaries should you wish to make a claim against the deceased’s estate.

In order to do so however, you must act promptly.

The first step is to create a document called a Caveat. A Caveat sets out the details of the person who has passed away and the date of their death. This helps the Probate Registry identify the relevant estate. The form has a prescribed form and when sent to the Probate Registry it must be accompanied by the appropriate fee.

If a Caveat is lodged with the Probate Registry before the application for a Grant of Probate or Letters of Administration has been filed, it prevents the issue of the Grant or Letters of Administration. The Personal Representatives will not be able to collect the assets of the estate together or sell any of the deceased’s properties until the Caveat has been removed.

A Caveat is only in place for a 6 month period although it is possible to renew it. During the 6 month period, this time should be used to investigate and present any claim.

The Caveat can be removed by a Personal Representative. In order to make this challenge, the Personal Representative lodges what is called a Warning at the Probate Registry. No fee is required to do this.

The Warning is sent to the person who entered the Caveat and they in turn have a short period of time to respond. This is called “entering an Appearance” at the Probate Registry.

If there is a failure to enter an Appearance, an Affidavit of Service of the Warning is lodged with the Probate Registry and the Caveat will then be removed enabling the Personal Representative to apply it for a Grant.

If however an Appearance is entered, the Caveat remains in place until the issues are resolved and the Caveat removed by consent between the parties or by Order of the Court. In many cases it is removed by consent once substantive issues are resolved or agreed.

The Appearance sets out to the Court why the objection has been raised and also the interest the Caveator (the person filing the Caveat) has in the estate along with the reasons why the Caveat has been lodged. The reasons for lodging it must be valid and not vindictive.

A failure to send an Appearance at the correct time or at all is likely to lead to the Grant of Representation being allowed to proceed. It is important that the Appearance covers all the relevant issues as this too may result in the Caveat being set aside and the Grant being issued.

If you wish to challenge a Will or indeed review the distribution of inheritance, it is important to obtain advice early.

For further information in relating to an inheritance dispute, contact Maninder and the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Enforcing a sale of a property owned jointly at Court is governed by the Trusts of Land and Appointment of Trustees Act 1996 otherwise known as TOLATA.

Why would I need to enforce a sale of a property owned jointly?

There are a number of reasons as to why an individual may choose to issue a TOLATA claim and below are a few examples:

To have your named removed from the mortgage and legal title;
An application made by a family member such as a parent, sibling or grandparent who wish to receive their financial interest in the property;
To force the sale of a property which you and the co-owner inherited from a deceased’s estate;
When an ex-partner refuses to leave and you wish to occupy your former family home alone.

What happens if the co-owner refuses to cooperate?

If negotiation and discussions with the co-owner come to no avail then the next step is to issue a claim under Part 8 of the Civil Procedure Rules 1998. This involves completing a Part 8 Claim Form and producing a Witness Statement setting out the claim and what order is sought from the Court.

In determining whether to make an order under TOLATA the Court will consider a number of factors. Some of the factors that the Court will consider would be the intentions of the parties and in particular the reason why they purchased the property and for what purpose. The Court will also consider if there are any occupants under the age of 18 in the property and any interests in the property such as whether there is a lender.

The last thing anyone wants is to disagree and fall out with friends and family regarding property and assets. Disputes of this nature can and does strain relationships. Therefore, careful thought and planning must be invested into finding resolution to reduce this as much as possible and prevent legal costs increasing unnecessarily.

At Franklins we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. Contact the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Personal Representatives have an overriding duty when administering an estate and their duty falls within the scope of Section 25 of the Administration of the Estate Act 1925 (“The Act”).

A Personal Representative has a duty to collect in the real and personal estate of the deceased and administer it according to the law. If a Personal Representative fails to act in accordance with their duties then a beneficiary, co-executor or co-administrator can compel that individual to act in accordance with their duties as prescribed by law.

As a beneficiary what am I entitled to?

Beneficiaries have a right to the accounts of the estate and the Personal Representatives are obliged to provide this. Beneficiaries are entitled to review them and should they have any questions in regards to the accounts then they are entitled to ask the Personal Representative for further clarification.

What if the Personal Representative does not cooperate?

If the Personal Representative refuses to provide the accounts of the estate or provides accounts which are not fully completed then the beneficiaries are entitled to issue administration proceedings against the Personal Representative under Part 64 of the Civil Procedure Rules 1998 (“CPR”).

Part 64.2 of the CPR states the following:

“This Section of this Part applies to claims –

(a) for the court to determine any question arising in –

(i) the administration of the estate of a deceased person; or

(ii) the execution of a Trust;

(b) for an order for the administration of the estate of a deceased person, or the execution of a Trust, to be carried out under the direction of the court (‘an administration order’);

(d) under section 48 of the Administration of Justice Act 1985.”

This Part provides that a beneficiary can make an application to Court compelling the Personal Representative to answer questions relating to the accounts and provide the clarity required.

It is however always useful to exhaust all avenues with the Personal Representative directly in relation to the accounts before issuing Court proceedings given the time and cost associated with such applications.

For further advice and assistance relating to Personal Representatives contact Maninder Mann, Solicitor in our Dispute Resolution team, on 01604 828282 / 01908 660966 or email maninder.mann@franklins-sols.co.uk.

Inheritance_Family_Tree If an individual executes a Will they do so because they wish to dispose of their estate as they please. Equally, if an individual does not execute a Will then their estate will be distributed in accordance with the Intestacy Rules.

What if a deceased does not leave you enough or nothing at all whether in their Will or under the Intestacy Rules and you were financially dependent on them?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependant on a deceased.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, co-habitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories that must be explored and satisfied in order to be eligible to present a claim to Court and these are as follows:

The deceased must have been living in England and Wales at the time of death;
As an applicant, you must be one of the below as outlined in Section 1 (1) of the Act:
- The Spouse of Civil Partner of the deceased;
- A former Spouse or Civil Partner of the deceased who has not re-married or entered another civil partnership
- A child of the deceased;
- A person treated like a child by the deceased by virtue of a marriage of civil partnership;
- A person who was immediately before death of the deceased maintained, either wholly or partly on the deceased;
- A person who was cohabiting with the deceased and living with them for a period of at least two years.
If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What will the Court consider when determining my application under the Act?

The Court will need to consider whether there has been reasonable financial provision for you. Determining this is subjective and based on each individual application and the Court when deciding the same will do so on several factors.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance. Such factors are set out in Section 3 (1) of the Act which can be found below:

“(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

Are the above factors same for each applicant?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

The age of the applicant and the duration of the marriage;
The contribution the applicant made to the welfare of the family;
What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.

Green Tractor Marion Horsford defeated her son, Peter Horsford over a £6 million country estate to ensure she received her share.

Peter Horsford had worked on the family farm since he was a schoolboy and purportedly sacrificed his childhood to labour on the family farm. He also alleged it had been promised that the 540-acre estate would “all be his one day.”

Mrs Horsford split from her husband in 2011 and retired from the family farming partnership and requested £2.52 million from her son for her share along with £23,000.00 in past profits. Mr Horsford who had been diagnosed with dementia was unable to clarify who was due the share of the estate.

Peter Horsford’s refusal to pay his mother was on the basis that he had received a lifetime of assurances and argued if he had to pay her, he would need to sell the farm.

Mrs Horsford however argued that she wanted fairness for her three children and that her son had already benefited from his own hard work on the farm and his parents generosity over the years.

The matter went before the High Court and Judge Rosen ruled in favour of Mrs Horsford. Judge Rosen stated that although Mrs Horsford had said previously she might leave him her share she had not promised this and therefore was entitled to the share she requested.

In delivering the judgment, Judge Rosen believed there was a clear distinction between a promise and statements of intent and referenced to Mrs Horsford’s diary wherein which she made references to her “darling daughters.”

Peter Horsford however believed it was his right to inherit the whole estate and grew up on the same assurances.

He also alleged that in order to pay his mother the £2.52 million the farm may need to be sold.

Disputes such as this can strain relationships and drive families apart. If you require legal advice or assistance in disputes surrounding Inheritance Disputes and Promissory Estoppel, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins either on 01604 828282/01908 660966 or at litigation@franklins-sols.co.uk.