Contentious Probate Glossary

ACTAPS

The Association of Contentious Trust and Probate Specialists.

Constructive Trust
Commonly a dispute will arise where either an unmarried couple have split up and their home is in the name of one of the partners only, or where the partner owning the property dies and there is an argument as to whether his or her bereaved partner has any entitlement to the proceeds of sale of the property.

There have been many cases that have been argued at court over this issue, most recently the case of Kernott v Jones.  It is a matter for a court to decide as to the extent of the non owning party’s share of the property.

Executors
An executor is someone who is appointed under the deceased’s will to administer their estate.  An executor needs to apply to a District Probate Registry for a grant of probate after completing certain paperwork in order to deal with the deceased’s assets.

If the deceased died intestate, ie without making a will then it is the deceased’s next of kin who is entitled to apply for a grant to gather in the assets and this grant is called ‘Letters of Administration’ and the person who applies for them is called an administrator.

The grant gives an executor or administrator the authority to deal with assets and usually it must be produced to banks and building societies for them to release funds.

Intestacy
This is what happens when you die without a valid Will.  A person’s estate is distributed according to the Intestacy Rules.

Mediation
Mediation is a way of trying to settle a dispute either before or after court proceedings.  Both sides must be willing to negotiate even if only to seek to reduce or clarify the issues in dispute.  Usually an independent qualified mediator will host a discussion where the parties and their legal advisers are kept separate from each other but in the same building and the mediator will liaise between the parties.

The discussions are “off the record” and if agreement is not reached then the parties are not bound by any concessions that may have been made.  An agreement reached at mediation is binding on the parties.  The benefits of mediation are that the parties to a dispute have an opportunity to ‘have their say’ (which often a court hearing does not allow) and agreements reached can be more flexible and creative than those that are imposed by a Judge.  Very often mediation will save substantial legal costs as well.

Proprietary Estoppel
The principle of proprietary estoppel allows a court to intervene where it would be wrong to deny a non owning party a share of ownership (usually of a house). The non owning party must have acted to their detriment in the belief that their partner has either given or is going to give them an interest in the property.  The owning party must have encouraged this belief and it must be seen as wrong (or as lawyers put it, ‘inequitable’) for the owning party to seek to assert their strict legal rights against the non owning party.

Trust
The purpose of a trust is to manage some of your assets for someone else’s benefit.  They can be set up in a person’s lifetime or they can also arise on death under the terms of a will (or when an intestacy arises if there is no will and there is a beneficiary under the age of 18).  Trust law is complicated but it can be an excellent way of protecting assets for vulnerable individuals such as children or disabled family members.  It is very important to choose people to act as trustees who understand their duties and can act in the best interests of the person who is the object of the trust. Disputes can arise if a trustee acts in an improper way, or if they get conflicting or bad advice from professionals. Trust law is complex and trustees do not always understand the rules that govern their conduct.