Cheyney Goulding

Cheyney Goulding Solicitors

t: 01483 56 76 76   e: legal@cheyneygoulding.co.uk

Graham Young

Contentious Probate

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Disputes between family members over the estate of a deceased seem to be increasing .  A claim under the Inheritance ( Provision for Family Dependants )  Act 1975 allows certain individuals to contest a will or intestacy if they believe  they have not been adequately been provided for .

Potential claimants

  1. A spouse or civil partner of the deceased
  2. A former spouse or civil partner who has not remarried or entered into a new civil partnership.
  3. Children of the deceased , including adopted children and those born outside of the marriage .
  4. Individuals who were being maintained by the deceased immediately before their death.

A Claimant can claim if they believe the deceased did not make reasonable financial provision for them.

However,  there are strict time limits to make a claim . A claim must usually be made with 6 months from the date of the grant of probate or letters of administration .

The Court will consider the Claimant’s needs together with the deceased’s obligations to the Claimant along with the interests of other beneficiaries .

It should be noted that litigation can be a stressful , time consuming and expensive process . It is therefore important to consider other potential  ways of resolving any dispute such as mediation .

If you would like more information please contact Graham Young on 01483 796002 or by email gyoung@cheyneygoulding.co.uk

Neighbour Disputes

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Neighbour disputes can take a variety of forms for example :

Noise

Disputes over a boundary or fence

Parking

Trees right to light issues

Breach of Planning regulations

Any of these issues can cause stress and tension which can lead to  unpleasant incidents between neighbours which might involve the police getting involved.

It is important to keep a diary of events that might be helpful in the future if it is necessary to take matters further. It is important to take advice at an early stage before matters escalate out of control . It might be necessary to instruct a solicitor or boundary surveyor to clarify the issues and to try to resolve matters amicably .

Litigation might be necessary although it can be an expensive and stressful process .  A  decision to issue Court proceedings should not be taken lightly. Litigation is easy to get into and expensive to get out of. However, mediation is also an option that is worth considering . It is quicker and cheaper than lengthy Court proceedings and reaching a practical settlement might be a sensible solution .

It is also important to remember that when your  property is being sold in the future it will be necessary to disclose any dispute with neighbours on the Property Information Questionnaire . A dispute could therefore hinder a future sale or lead to a reduction of price .

It is also possible that you might have purchased a property in good faith and a neighbour dispute was not disclosed by the seller . You might have a cause of action against the seller for failure to disclose the dispute .

If you would like any further information please contact Graham Young on 01483 796002 or by email on gyoung@cheyneygoulding.co.uk

Litigation – Fixed Recoverable Costs

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In October 2023 the Fixed Recoverable Costs ( FRC) regime was extended to try and give clarity over the costs that a winning party can recover from a losing party.  The aim is to reduce the time and expense of having to have costs assessed by the Court after the conclusion of a case.

The process is called detailed assessment and can be both time consuming and expensive. Some commercial disputes are now covered by the FRC whereas previously it was aimed at low value claims. The FRC have been extended to all civil that fall within the fast track . A new intermediate track was introduced that includes cases valued between £25,000 and £100,000.

A consideration for a commercial party will be to consider whether they wish to contract out of the FRC regime when litigation arises or progresses. It will be easier for substantial companies cover the shortfall in the costs recovered than a smaller company.

In any pre -trial negotiations it might be helpful to offer a sum in excess of the FRC allowance as part of a settlement offer to try and avoid the costs and litigation risk of going to trial.

It is always prudent to consider settlement at an early stage and a mediation can often lead to a settlement if both parties attend the mediation with a genuine desire to resolve the dispute.

If a party is unwilling to mediate it is still worth the other party offering to mediate . If  the Court decides at trial that a party has unreasonably refused to mediate they  can be penalised on costs even if they have been successful.

If you would like any further information on a litigation issue please contact Graham Young on 01483 796002 or gyoung@cheyneygoulding.co.uk

Contentious Probate: Causes and Protection

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In recent years there has been a significant growth in challenges to Wills or entitlements to grants of representation.  This trend of increasing contentious probate cases emphasises the need for proactive estate planning and dispute resolution strategies.

One driver for these disputes lies in the complexities of personal relationships. Divorces, remarriages, and the blending of families can create volatile situations, making it crucial to address potential conflicts in estate planning.  Another is financial assistance provided to family members for education or property purchases.  This can inadvertently sow the seeds of discord upon one’s passing. The death of a family member may trigger suppressed tensions, compelling disgruntled heirs to contest the will.

Escalating property prices have also played a pivotal role in probate disputes. The substantial sums at stake in these cases can tempt beneficiaries into litigation.

To safeguard your estate from becoming embroiled in contentious probate, consider the following preventive measures:

  1. Consult with legal professionals to create a comprehensive will that aligns with your wishes.
  2. Ensure your will remains up-to-date and in accordance with changing legislation.
  3. Select executors who can responsibly manage your estate and mitigate conflicts.
  4. If disputes loom, seek legal advice before initiating court proceedings to explore amicable resolutions.
  5. Attempt mediation to resolve disputes, preventing costs and emotions from spiralling out of control.

The growth of contentious probate cases underscores the importance of proactive estate planning. These measures can help protect estates and promote family harmony in the face of challenging circumstances.

This article is for general information only and does not constitute legal advice. If you would like to discuss anything in this article, please get in touch. 

Covid-19 cancellation and suspension of contracts

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The World has changed.

Worrying about Brexit and freedom of movement seems like a distant memory. The pubs were closed in Dublin on St. Patrick’s day. There is no live sport anywhere in the world. Theaters, bars and restaurants are empty.

New expressions have arrived in the English language; “Self- isolate” is now said more often than “selfie”.

“Force majeure” may also become a significant part of our vocabulary in the coming weeks and months.

Force majeure is the happening of events outside the control of the parties to a contract. For example, this could be natural disasters, the outbreak of hostilities, and, of particular relevance today, epidemics and pandemics. It is usual for parties to provide in a contract that such events will not make the defaulting party liable if they prevent it from performing its obligations. The concept is derived from civil law but is not fully recognised under common law, which means the wording of any force majeure clause is particularly important.

Normally a breach by a party of its obligations under a contract for  non-performance or delayed performance would result in that party being liable to pay the other party the losses that they suffer as a result of the breach. However, if this was caused by an event outside their control and where that circumstance is addressed by a force majeure clause in the contract (which usually includes a list of events) then the party relying on the clause may be able to avoid liability that might have arisen from the breach. In the absence of an express clause, the common law doctrine of frustration may apply.  Frustration only applies in certain restricted circumstances where performance has become impossible. It offers limited relief and remedies to the parties.

If you have any queries about force majeure please contact Graham Young (email: gyoung@cheyneygoulding.co.uk, phone: 01483 796002 or 07967333328).

Cheyney Goulding LLP is a firm of solicitors in Guildford, Surrey. 

This guide is for general information only and does not constitute legal advice.