When we are instructed on a contentious probate matter, the very first question to be explored is, the motives of the proposed claim. Unfortunately, such matters are often entrenched with emotions, family history and ill feelings. This is not a sound basis for litigation. If there is any way at all of diffusing the situation then we explore that option.
I have seen many such matters go to court and the one guaranteed result is, the value of the estate will be diminished by legal fees. Having said this, there is of course a duty to the client to act in their best interests. If there is a genuine claim then we will assist the client but I fear that far too often, law firms take instructions from a client who has already embroiled themselves into a litigious situation leaving the lawyers with a situation of damage limitation.
The point to get across is, if someone finds themselves in a situation which could become contentious, seek immediate legal advice before the matter gets out of hand.
A prime example of a case which was unfortunately blinded by family history is set out below.
Inheritance disputes are often about more than money and can sadly be intractable due to the heightened emotions involved. One case, involving a pub that was left in trust to three children, showed exactly why professional legal advice is needed to defuse feelings and provide clarity.
The pub, which had been valued at up to £2.1 million, had been put in trust for the children by the will of their deceased mother. However, difficulties arose because one of them (the son) had been in long-term occupation of the pub, from which he ran a successful business in which he had invested heavily, and had no desire to leave.
Acting with the authority of the High Court at every stage, the trustees of the will obtained a possession order in respect of the pub, and the son and companies that he controlled were directed to give up vacant possession. The Court rejected his plea that the trustees had promised that he could stay in the pub until his investment was repaid. Even had such a promise been made, it would not have been binding on his siblings, who argued that, whilst their brother was in situ, the pub had a nil value.
In a final attempt to remain in occupation of the pub, the son argued that, in taking possession of the premises and selling it on as a going concern, the trustees would be guilty of passing off and breaching intellectual property rights associated with the business he ran there.
The Court noted that the son’s desire to remain in occupation of the pub, where he had worked from an early age, was understandable. However, it was owned by the trust, not by him, and there was no legal basis on which he could stay there. His arguments in respect of passing off and intellectual property rights had been brought too late and amounted to an abuse of the court’s process. The trustees were authorised to sell the property after obtaining vacant possession.
