UK Law and Practice Contributed by: Ros Bever, Claire-Marie Cornford, Helen Clarke and Ashley Hill, Irwin Mitchell
leads to contention among beneficiaries – a great deal is at stake and emotions run high. The rise in modern blended families – such as mar - riages in later life, second or third marriages – and the increase in cohabiting couples adds to estate planning complexity and increases the risk of disharmony and dispute. The legal and procedural aspects of probate disputes remain complex. Disputes may arise over the alloca - tion of IHT burdens, particularly where foreign assets or trusts are involved. Other common issues include the validity of wills, domicile of the deceased deter - mining which country’s succession law applies, and claims that reasonable financial provision has not been made (see 2.3 Forced Heirship Laws and 5.2 Mechanism for Compensation ). Cross-border ele - ments – such as foreign assets or differing succession laws in other jurisdictions – add significant complexity. In Scotland, the law differs from England and Wales regarding the revocation of wills upon marriage and the rights of surviving spouses, which can lead to dis - putes over the distribution of heritable and movable property The use of trusts and other family arrangements to manage wealth has contributed to the increase in disputes. Questions often arise regarding the origins of wealth, the legitimacy of asset transfers, and the control or ownership of properties. Disputes may involve allegations of sham agreements or attempts to obscure the true ownership of assets, as seen in cases where family members or trustees are impli - cated in litigation over wealth distribution. 5.2 Mechanism for Compensation The jurisdiction of UK courts in relation to wealth dis - putes involving trusts, estates and corporate entities hinges on a combination of statutory provisions, com - mon law and equitable principles, depending on the nature of the dispute: • trust disputes typically relate to the exercise of trustees’ powers and actions or omissions that may amount to breach of trust;
• the courts of England and Wales have inherent jurisdiction over all trusts and estates (of deceased individuals) governed by the law of England and Wales; • trustees and personal representatives may be removed by the courts and can be called to account for all actions in a fiduciary capacity, including any financial advantage gained while act - ing as a fiduciary; • equitable compensation may be available for finan - cial loss caused by breach of trust; and • the family law courts have an ability to vary or set aside trusts on divorce, particularly sham trusts or those set up to defeat financial claims. The courts have jurisdiction to moderate testamentary freedom by making provision for close relations and dependents in certain circumstances. Where the deceased died domiciled in England and Wales, a claim may be brought under the Inheritance (Provision for Family and Dependents Act) 1975. This can include lump sum or periodical payments from the deceased’s estate, transfer of property from the estate, or variation of trusts on which the estate is held. The court considers factors such as the financial needs and resources of the applicant, the size and nature of the estate, and the deceased’s obligations to the applicant. The court can also take into account lifetime dispositions made by the deceased, including any intended to defeat a claim. Different statutory frameworks exist in Scotland and Northern Ireland, respectively (see also 2.3 Forced Heirship Laws ). 6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries It is becoming increasingly common in the UK for corporate fiduciaries such as corporate trustees or individual legal or tax professionals to act as trus - tees, particularly in an increasingly complex global
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