Civil Disputes

Disputes concerning probate and administration of Estates are unfortunately on the increase, concerning as they do emotive and sensitive family feelings, these cases can be difficult to resolve and unfortunately expensive.

The following information is intended to be helpful.

Mediation:

The Court rules now strongly encourage parties to mediate rather than going to Court.

Mediation is a process where disputing parties meet a neutral third party who is a qualified mediator. The mediator acts ultimately as a referee and aims to assist parties to compromise.

Mediation is not suitable for every case, but refusing to mediate can run the risk that a Court will later penalise the reluctant party in costs. In any event in probate cases, quite often each party’s costs are ordered to be paid from the Estate. Mediation if successful can be dramatically quicker and a fraction of the cost of contested court proceedings.

Mediation is not a substitute for independent legal advice and one can provide this as well as advising and guiding you through the mediation process.

Caveat:

A Caveat is an application made to the Probate Registry and prevents the issue of most forms of Grants of Probate or Letters of Administration.

A Caveat is therefore a useful device for preventing the administration of an Estate where for example there is a dispute about entitlement to the grant of the distribution of the Estate.

There is a procedure to deal with disputes about Caveats. The individual seeking to challenge the Caveat may serve a “warning” (which must be in a special format) and the effect of this is that if the caveator wishes to persist with their caveat he must issue a summons for the matter of entitlement to be determined by the Court. Statutory time limits apply.

Standing Search:

Sometimes it is not necessary to obstruct a Grant of Probate – one simply wishes to know when a Grant has been issued. An example of this would be where your desire to bring an action under the Inheritance Act (see separate briefing note). This cannot be issued until a Grant has been issued – but

Citation:

A Citation is effectively an Order of the Court calling upon a party interested in an Estate to undertake a particular step.

An application for a Citation must be supported by a sworn statement and a caveat must be lodged.

Citations can require for example an Executor to formally apply for Probate where they have refused to do so voluntarily.

An application for a Citation is often used as an opening more in contentious Probate proceedings.

Probate Proceedings:

The subject of disputes concerning Probate and Administrations of Estates is varied. For example, there may simply be animosity between different Executors or Beneficiaries. There may be a dispute as to who is entitled to apply for a grant or a complaint that an Executor is failing to effectively deal with the administration of an Estate.

The procedure involved in formal Probate proceedings is extremely complicated and falls outside the ambit of this briefing note. However, the range of orders that a Court may make are wide and include:-

(i) Order for the removal and/or substitution of an Executor or Administrator; these orders may be made where there is clear evidence of mismanagement, delay dishonesty or breach of an Executor’s duties to act in good faith towards the Estate

(ii) Orders as to the validity or interpretation/construction of a Will – for example that the Testator lacked capacity to make a Will (see separate briefing note).

(iii) Order as to who is entitled to apply for a Grant of Administration in an intestacy case

(iv) Order for the revocation of an existing grant available where the original grant was obtained by a false statement for example where a Will has been invalidated by a later Will, or that the Will has been revoked – perhaps because the deceased re-married after the Will was made.

Disputes concerning Probate and the administration of Estates are complex. We have lawyers specialising both in Probate/Administration of Estates and in the resolution of civil disputes. We are able to offer a specialist and inter disciplinary approach.