In contentious probate cases, there may be a risk of disposal of assets prior to a claim being resolved. If a Grant of Probate has already been obtained (so it is not possible to apply for a caveat), the executors or administrators can proceed to collect in all of the assets of the Estate, including selling any land and buildings that are part of the Estate and proceed to distribute the assets according to the Will or Intestacy. Our contested probate solicitors have many years of experience in dealing with claims relating to this complex area of litigation and can advise thoroughly on such matters.
In such cases, it may be necessary to take steps to prevent the disposal of the assets, for example:
Application to the Land Registry to register a restriction to prevent dealings with the property, providing there is evidence of a resulting or constructive trust. Such an application can be challenged and, if so, the Land Registry can be asked to determine the dispute;
Following the issue of proceedings, application to the Land Registry to register a notice as a result of a pending land action against the property so that the party making the claim will be notified of any dealings with the property;
Application to the Court for a freezing injunction to restrain a party from disposing of or otherwise dealing with assets pending determination of the proceedings. There must be a good arguable case and a real risk of disposal of assets. The person making this application must be able to give an undertaking to the Court to pay damages to the other party, if appropriate. This application can be made without giving notice to the other party if necessary.
Even if there is no immediate risk of disposal of property before the claim is resolved, it would still be appropriate to consider taking the steps above to protect the position. It is also possible to apply to the Land Registry for a property alert notification so that you would be notified of any activity regarding the property, although this does not prevent dealings with the property and you will not be informed what the application relates to.
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