DISPUTE RESOLUTION                                    

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Alternative Dispute Resolution (ADR) refers to various methods used to resolve disputes without resorting to litigation. In the context of Business & Corporate > Partnership law matters in the United Kingdom > England, the primary types of ADR include:

• Negotiation:

• Arbitration:

• Conciliation:

• Early Neutral Evaluation (ENE):.

• Adjudication:

• Expert Determination:

 

Wills and Administration of Estates and Probate (Include CONTENTIOUS PROBATE)

Contentious probate issues require careful consideration of legal grounds and procedural steps. Seeking legal advice is essential to navigate this process effectively.

Dealing with contentious probate issues can be complex and emotionally challenging. Here are some key points and steps to consider:

Grounds for Contesting a Will

• Lack of Testamentary Capacity: The testator must have had the mental capacity to understand the nature and effect of making a will, the extent of the property being disposed of, and the claims to which they ought to give effect.

• Undue Influence: If the testator was coerced or unduly influenced by another person when making the will, it can be contested.

• Lack of Valid Execution: A will must comply with the formal requirements set out in the Wills Act 1837, including being in writing, signed by the testator, and witnessed by two independent witnesses.

• Lack of Knowledge and Approval: The testator must have known and approved the contents of the will.

• Fraud or Forgery: If the will was forged or if the testator was misled into signing a document they did not understand to be their will, it can be contested.

Steps to Challenge a Will

• Seek Legal Advice: Consult with a solicitor who specialises in probate and contested wills to understand the strength of your claim and the potential costs involved.

• Mediation: Consider mediation as a way to resolve the dispute. Mediation can be a quicker and less expensive way to settle the matter.

• Enter a Caveat: If you decide to proceed with contesting the will, you may wish to enter a caveat at the Probate Registry. This prevents the grant of probate from being issued while the dispute is ongoing.

• Prepare a Claim: If mediation is unsuccessful, you will need to prepare a claim form and a statement of case setting out the grounds for your claim. This will be submitted to the court.

• Court Proceedings: If the claim is not settled, it will proceed to a trial where a judge will make a decision based on the evidence presented.

Interim Grant of Probate

If there is an urgent need to manage certain aspects of the estate while the dispute is being resolved, you may apply for an interim grant of probate. This involves:

• Identifying the Need: Determine why an interim grant is necessary, such as managing urgent financial matters or preserving estate assets.

• Preparing the Application: Complete the appropriate probate application form (PA1P or PA1A), prepare a witness statement, and include supporting documents.

• Filing the Application: Submit the application to the Probate Registry by post.

• Serving Notice: Notify all interested parties of the application.

• Court Hearing: A hearing may be scheduled if there are objections.

• Grant Issuance: If approved, an interim grant of probate will be issued with limited powers.

Dealing with Disagreements Among Executors

• Attempt to Reach an Agreement: Try to resolve disagreements through discussions or mediation.

• Seek Legal Advice: If an agreement cannot be reached, seek legal advice.

• Court Intervention: Apply to the court to remove an executor if necessary.

• Continue Administration: Comply with the court's order and continue administering the estate.

Considerations

• Fiduciary Duty: Executors have a fiduciary duty to act in the best interests of all beneficiaries and to administer the estate impartially.

• Neutrality: Remaining neutral helps maintain trust and confidence in the administration process.

COURT OF PROTECTION

The Court of Protection plays a crucial role in safeguarding the interests of individuals who lack mental capacity. Whether you are seeking to make decisions on behalf of a loved one, resolve disputes, or register an EPA or LPA, it is important to understand the legal framework and seek appropriate legal advice.

The Court of Protection in England and Wales is a specialist court that deals with issues relating to individuals who lack the mental capacity to make decisions for themselves. Here is an overview of its functions and some key points:

Key Points to Consider

• Mental Capacity Act 2005: The court operates under the framework of the Mental Capacity Act 2005, which provides the legal basis for making decisions on behalf of individuals who lack capacity.

• Best Interests: Any decision made by the court or a deputy must be in the best interests of the person who lacks capacity. This includes considering their past and present wishes, feelings, beliefs, and values.

• Application Process: To apply to the Court of Protection, you will need to complete the relevant forms (e.g., Form COP1) and provide supporting information, such as medical evidence and witness statements.

• Court Fees: There are fees associated with making an application to the Court of Protection, although fee remission may be available in certain circumstances.

• Legal Advice: Given the complexity of the issues involved, it is advisable to seek legal advice before proceeding with an application to the Court of Protection

Specific Scenarios

• Dispensing with Notice to Family Members: If you need to dispense with the requirement to give notice to family members when registering an EPA, you will need to follow the steps outlined in the Mental Capacity Act 2005 and the associated Code of Practice. This includes completing Form COP1, providing a witness statement, and paying the court fee.

• Selling Property: If you are an attorney under an LPA and need to sell property on behalf of someone who has lost capacity, you must ensure that the LPA grants you the authority to do so and that you act in the best interests of the person who has lost capacity. You may need to seek the court's permission if there is a conflict of interest or if the LPA does not provide the necessary authority.

• Appointing the Official Solicitor: The Official Solicitor can be appointed to act on behalf of individuals who lack capacity and have no one else suitable or willing to act as a litigation friend.