Challenging lifetime dispositions


Produced in partnership with Emma Holland of Stewarts Law
Practice notes

Challenging lifetime dispositions


Produced in partnership with Emma Holland of Stewarts Law

Practice notes
imgtext

The nature of Disputes as to lifetime Dispositions

Particularly where an estate appears to be smaller than anticipated, Personal representatives (PRs) and beneficiaries often have queries and concerns about dispositions made by the deceased during their lifetime. These dispositions may include gifts, asset sales which appear to have been made at an undervalue, Loans on favourable terms, solely owned assets which were transferred into joint names and deathbed gifts.

Where the deceased's affairs were being dealt with by an attorney or deputy the focus of investigations may need to include them.

Challenging lifetime dispositions

There are a number of bases upon which a lifetime disposition may be challenged. Such claims may involve allegations that:

  1. •

    the deceased lacked capacity (including concerns relating to potential abuse by an attorney or deputy)

  2. •

    the deceased was subjected to undue influence, and

  3. •

    the requirements for a valid deathbed gift (donatio mortis causa) were not met

The test for capacity to make lifetime gifts and the burden of proof

The common law test for establishing mental capacity

Emma Holland
Emma Holland

Stewarts Law

Emma assists beneficiaries, trustees, and other fiduciaries with trust disputes both onshore and in numerous offshore jurisdictions. Emma also specialises in probate disputes, and disputes overseen by the Court of Protection. Emma has been recognised as a Next Generation Lawyer (Legal 500 2018) and as a Top 35 Under 35 private client practitioner (eprivateclient 2016). Notable examples of work include advising (often alongside foreign law counsel): - discretionary beneficiaries of Bermudian trusts holding a construction business on family corporate governance, applications for approval of restructuring proposals and contentious tax. A Public Trustee v Cooper hearing took place in 2017 (Re X,Y,Z Trusts [2017] Sc (Bda) III Civ). - a beneficiary opposed to a trustee's proposal to sell a key trust asset, involving a jurisdiction challenge in Jersey (Representation of G Trustees Limited [2017] JRC 162A) and a trustee removal application in Bermuda (In the Matter of the E Trust [2017] SC (Bda) 103 Civ). - beneficiaries regarding the removal of a protector (In the matter of the K Trust, Guernsey Judgment 31/2015). - trustees in defending allegations of breach of trust through material non-disclosure (AB Jnr & Or v MB & Ors [2013] (1) CILR 1). - on jurisdiction relating to a succession dispute focusing on the friction between English testamentary freedom and Italian forced heirship rules (Durham v Lambton & Ors [2013] EWhC 3566 (Ch)). - on a contested health and welfare, and property and affairs, deputyship application, including the Local Authority's application relating to deprivation of liberty.

Read moreRead more
Powered by Lexis+®
Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Disposition definition
What does Disposition mean?

In the absence of any express statutory provision, the primary meaning of 'disposition' in relation to property is the transfer of an interest in (as contrasted with mere possession of) property.

Read more

Popular documents

Probate actions—citations

Probate actions—citationsA citation is issued under the seal of the Principal Registry of the Family Division or a district probate registry. It contains the reason for its issue and the interest of the party extracting it (the citor). The citation calls upon the party cited (the citee) to enter an

Intermeddling in an estate

Intermeddling in an estateWhat is intermeddling?An individual who performs certain duties which a personal representative (PR) would perform to administer a deceased’s estate intermeddles in the estate. By performing these duties, the individual holds themselves out to be a PR and is deemed to have

Trust disputes—asset tracing

Trust disputes—asset tracingIn some circumstances a beneficiary will want to recover a specific asset. Tracing as a remedy will be the preferred option as the claimant seeks to establish a proprietary right to the asset.It is important to make the distinction between tracing the asset that was

Trust disputes—beneficiaries' rights to information

Trust disputes—beneficiaries' rights to informationA distinction should be drawn between disclosure by the trustees under trust law, due to the rights of beneficiaries to receive information and ‘non-party’ disclosure by trustees during litigation, whether voluntarily or as a result of a court