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  • Probate Disputes and Remedies

Probate Disputes and Remedies


Practical and in-depth guidance to the law and procedure of contentious probate

Probate Disputes and Remedies provides clear, practical and in-depth guidance to the law and procedure of contentious probate work. Adopting a problem-solving approach the authors highlight specific difficulties that are likely to be encountered in practice, discuss the advantages and disadvantages of each course of action and point out the potential pitfalls along the way.

 The work deals with the following matters:
  • Disputed lifetime transactions and the Court of Protection
  • Coroners’ inquests and burial disputes
  • Obtaining the grant - dispute and resolution
  • Disputes relating to the will
  • Estate administration disputes
  • Disappointed beneficiary claims
  • Creditor claims and insolvent estates
  • Claims against professional advisers
This new edition has been extensively revised throughout and includes new material such as:
  • New chapter on Mutual Wills
  • European Succession Regulations (Brussels IV)
  • Many chapters have new 'Practice and Procedure' section
  • Includes all new case-law such as Kernott v Jones, Perrins v Holland, Barrett v Bem, Curati v Perdoni, Re D (Statutory Will), Futter v Futter, Futter v HMRC, Ilot v Mitson, Iqbal v Ahmed, Marley v Rawlings, Burgess v Hawes, Greaves v Stolkin, PGF II SA v OMFS
  • New coroners regime (Coroners and Justice Act 2009)

Expertly drafted precedents including model letters and pleadings which provide the reader with a time-saving and practical resource.
  • Dedication – Brendan Hall deceased
  • Preface
  • Preface to the First Edition
  • Table of Cases
  • Table of Statutes
  • Table of Statutory Instruments
  • Part I - Pre-Death Issues
    • Disputes Arising out of Lifetime Transactions
    • Court of Protection
  • Part II - Death and Burial Disputes
    • Coroners’ Investigations
    • Disputes – Burial and Ashes
  • Part III - Obtaining the Grant – Disputes and Resolutions
    • Obtaining the Will
    • Entitlement to the Grant and Applications to Remove Personal
    • Blocking the Grant: Caveats
    • Limited and Discretionary Grants 
    • The Foreign Element
  • Part IV - Problems with the Will
    • Rectification
    • Construction
    • Validity Disputes
  • Part V - Disputes in the Estate Administration
    • Claims against Personal Representatives 
    • Disappointed Beneficiary Claims: Proprietary Estoppel and
      Constructive Trust Claims
    • Mutual Wills
    • Disappointed Beneficiary Claims: Claims under the Inheritance
      (Provision for Family and Dependants) Act 1975 
    • Disappointed Beneficiary Claims: Fatal Accident Claims 
    • Creditor Claims and Insolvent Estates 
    • Tax Evasion, Foreign Taxes and Criminal Matters
  • Part VI - Claims against Professional Advisers
    • Claims against Professional Advisers
  • Appendices
    • Probate Disputes
    • Sample Documents and Materials
  • Index
"the book features numbered paragraphs ... it is an understatement to say that this book is indispensable for those practicing in this complicated and sensitive area of law. Certainly the book should be considered an essential acquisition for every practitioner's library."
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
 To hear the full review click here
 To read the full review click here

"To achieve the goal of educating and informing this book's intended audience in so few pages shows that the authors have a remarkably strong grasp of their subject, and a flair for making complex points in a simple way. That is a sign of true experts.
The fact that this reviewer, who is far from an expert in probate disputes and remedies, came away feeling that he now has a reasonable understanding of the subject shows what a success this book truly is." 

Edward Buckland Global Head of Fiduciary at Barclays
STEP Journal
To read the full review click here 

Review of previous edition

"a book that can be recommended widely for those involved in probate practice, even for those who would not regard themselves as normally being involved in contentious probate matters ... The information in this book will be a considerable help in avoiding disputes escalating beyond the point of reasonable settlement or even preventing the dispute occurring in the first place ... a useful appendix of forms and precedents ... provides a wealth of material ... a very accessible book, which works well"
STEP Journal
 Georgina Bayley
Claire Blakemore
         Paola Fudakowska
         Geoffrey Kertesz
         Sue Medder
         Isabel Moreton
         Luca Del Panta
         Robin Paul
         Stephen Richards
         Natasha Stourton

All Withers LLP
Russell Beard
         Andrew Holden
 Matthew Watson 

 Barristers, both XXIV Old Buildings
Mistake and Hastings Bass
 20.35 Following Futter and another v The Commissioners for Her Majesty’s Revenue and Customs and Pitt and Another v The Commissioners for Her Majesty’s Revenue and Customs [2013] UKSC 26, a voluntary transaction can be set aside for mistake if there is a causative mistake of sufficient gravity. The gravity of the mistake is to be assessed by a close examination of the facts, and the injustice of leaving a transaction uncorrected must be evaluated ‘objectively with an intense focus on the facts of the particular case’.

 20.36 In the same judgment, the Supreme Court upheld the Court of Appeal decision in Pitt and Another v Holt and Another; Futter and another v Futter and Others [2011] EWCA Civ 197 to restate the Hastings Bass principle that a transaction will only be set aside where either a trustee’s act is:
 (1) outside the scope of his powers in which case it is void; or
 (2) within his powers but he either takes into account an irrelevant factor or fails to take into account a relevant factor, in which case the transaction will be voidable only if it amounts to a breach of fiduciary duty.

 20.37 Crucially, trustees will not be in breach if they take advice from competent advisers that turns out to be wrong. On that basis, so long as trustees are acting within scope, the transaction will be effective and the court will not be able to set it aside.

 20.38 This means that, in such circumstances, mitigation may not be a possibility and beneficiaries will be forced into the risks of professional negligence claims.

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