An existing entitlement to a share in the deceased’s property

What can you do if you own a share in the will maker’s property, but the will seeks to give that share to somebody other than you?  What can you do if you believe that you have acquired a share of the will maker’s property, but your ownership of that share is not acknowledged in the will?

It is well-known that a will maker uses his or her will to pass assets onto others following death.  Sometimes, however, the will attempts to pass the whole of an asset to a beneficiary when another person already owns a share of that asset.

Cases that raise these issues are not strictly contested probate cases.  Technically, to bring such a case, you are not really challenging a will.  Instead, you are asserting that you have a beneficial interest in property that the deceased’s will seeks to pass to somebody else, despite your interest.  You must establish that you already own a share of the property, or else demonstrate that the property is held on trust for you, to ensure that it is not passed to the beneficiaries.

The assets that is most likely to be the subject matter of such a claim is the family home.

Any claim to assert an interest in the deceased’s property should ideally be made before the estate is distributed.

When considering such a case, the court will look for various types of evidence in the following order.

Firstly, the court will see if there is any direct evidence of an “express trust” which confirms how the property was truly owned.  This might be in the form of a record of the terms of the conveyance, or an express declaration between the parties, or a document reflecting the terms of a pre-existing settlement.  Any such evidence must be in writing and must be signed by the parties.

Failing this, a legal presumption will be made based upon the way in which the legal title to the property is registered (usually in section B of the Title Deed held by the Land Registry).  A legal presumption is a circumstance whereby the judge will assume that a particular set of facts is correct, unless there is ample evidence to the contrary.

This legal presumption is rebuttable.  This means that the court will cease to assume that a particular set of faxes correct if there is sufficient evidence to contradict those assumed facts.

Therefore, proper evidence of a different “common intention” as to who owned the property being agreed between the parties will enable the court to ignore its initial assumption and in turn allow the court to agree that the property is owned differently to the circumstances registered in the title deed.

To do this, the court will look to see if there is an agreement between the parties as to how the equitable title (as opposed to legal title) to the property should be held.  In the absence of an express agreement, the judge will try to infer what the parties must have intended from their conduct.  The court will examine the whole course of dealing, to see if it is unconscionable to allow one person to deprive another person of an alleged beneficial interest in the property.

In the absence of any of the above, the property will be subject to a trust that results to the man who advances the purchase money.

Therefore, if you believe that you have acquired a share of the will maker’s property, it is crucial for you to gather all of the evidence that you can to prove your interest.  If your agreement was reduced into writing, and you should secure the documents.  If your agreement was filed with the land Registry, you should secure a copy of the deeds.

If the agreement was not reduced into writing, you should nevertheless be able to provide details as to what was agreed.  What were the precise terms of the agreement?  What did you have to do to secure your benefit?  When was the agreement made?  Were there any witnesses at the time the agreement was reached?  Was the agreement explained to others after it had been made?  You should seek to gather all the evidence that you can to answer these questions.  In these circumstances, it is crucial that you be able to demonstrate to the court that there was a formal arrangement that provided you with a share of the property, and the circumstances giving rise to this arrangement were so serious that it will be inequitable and unfair to subsequently deny you the benefit.

If you find yourself in the circumstances, you should seek legal adviceOur panel of will dispute solicitors will be able to assist.