《PROBATE DISPUTES AND REMEDIES FIRST EDITION》

Part Ⅰ Problems in Obtaining the Grant3

1 Entitlement to the Grant3

Interest actions3

Citations4

2 Obtaining the Will6

Securing the will by subpoena6

Examination by the court7

3 Blocking the Grant: the Correct Use of a Caveat8

When to lodge a caveat8

When a caveat should not be lodged9

Expiry and renewal10

4 Limited and Discretionary Grants12

Administration pending suit12

Administration ad colligenda bona12

5 Overcoming Minor Defects in the Will14

Testator error14

Doubts as to the testator's knowledge and approval15

6 The Foreign Element16

English deceased: foreign assets16

Foreign deceased: English assets19

7 Executor de son tort22

Intermeddling22

Part Ⅱ Problems in Administering the Estate22

8 Collecting in the Assets27

Preservation27

Vesting27

Realisation28

Identification29

Foreign assets30

Liability of personal representatives31

9 Discharging Debts32

Sums due to the deceased32

Debts due from personal representatives and beneficiaries32

Debt claims against the estate33

Payment of debts by personal representatives33

10 Administering Insolvent Estates35

Methods of administration35

Applying for directions36

Payment of debts37

11 Professional Fees39

Disputes39

Taxation40

12 Distribution of the Estate42

Unidentified or missing beneficiaries42

Spouses44

Children45

Charities46

Unincorporated associations46

Bankrupt beneficiaries46

Assets abroad46

13 Resolving Differences Between Personal Representatives and Beneficiaries47

Dispute as to the estate's assets47

Dispute as to the administration48

Dispute as to the beneficiary's entitlement50

Ambiguity: construction summonses51

Rectification of a will52

Entrenched inheritance rights52

The disaffected beneficiary52

14 Resolving Differences Between Personal Representatives54

Applying to the court for directions54

Substitution or removal of personal representatives54

15 Applications to the Court57

Applications for directions57

Application for enlargement of powers60

Construction summonses61

Rectification proceedings62

Application for removal or substitution of personal representatives63

Part Ⅲ Problems in Dealing with Claims Section A Claims Against the Estate63

16 Validity Claims71

Basis of claim71

Practice and procedure74

How to bring or defend a claim82

Alternatives to litigation89

17 Rectification91

Wills91

Other documents93

18 Proprietary Estoppel, Constructive Trust and Mutual Will Claims95

Mutual will claims95

Proprietary estoppel95

19 Forced Heirship, Community of Property and Similar Claims97

Section B Claims for Financial Provision97

20 The Fact Finding Interview—Relevant Considerations101

Does the 1975 Act apply?102

Size and nature of the estate105

Provision for the potential applicant under the deceased's will or application of the intestacy rules106

Other beneficiaries, applicants or potential applicants106

When was the grant issued?106

Applicant's means107

Variation to existing orders107

Who should take out the grant?108

Funding the litigation108

21 Framework of the 1975 Act110

Factors the court takes into account111

Those eligible to apply112

Case law and the courts' current attitude115

Orders which can be made by the court116

Impact of other factors118

Interaction with other claims120

22 1975 Act Claims: Procedure123

23 Compromise and Costs Under the 1975 Act127

Compromise127

Costs128

Section C Claims Affecting Personal Representatives24 Claims by or Against Personal Representatives133

Administration actions133

Payment into court134

Injunctive relief135

Accounts and inquiries or inventories136

Discovery and inspection of trust documents138

25 Devastavit and Breach of Trust140

Devastavit140

Form of action for devastavit or breach of trust142

Extent of liability143

Defences to claims144

Section D Post-administration Claims144

26 Post-administration Disputes151

Unsatisfied creditors151

Overlooked/underpaid beneficiaries153

Erring personal representatives153

Innocent personal representatives154

Overpaid beneficiaries156

Section E Ancillary Matters156

27 Obtaining Leave of the Court159

Beddoe summonses159

Procedure160

Charity proceedings161

28 Disability163

Representing persons under disability163

The Official Solicitor165

Enduring powers of attorney165

Compromise166

Funds received by disabled persons167

29 Costs168

Personal representatives' entitlement to costs168

Taxation171

Part Ⅳ AppendicesAppendix Ⅰ Precedents177

Appendix Ⅱ Other materials235

Index259