‘Jurisdiction & Powers of FTT (Property Chamber) in claims associated with Contentious Probate (‘CP’) proceedings?’

The prime asset in CP claims is usually the family home & other property.

As I explain in my forthcoming book, the 2nd Edition of the Contentious Probate Handbook (which is on schedule for publication by the Law Society in mid to late February 2025), the following are not CP claims:

– Proprietary estoppel claims (‘PE’); and
– Constructive Trust Claims (‘CT’).

However they are associated with CP, and therefore are bound-up with the administration of justice in these claims.

So, where e.g. a beneficial interest in property (‘BP’) bypasses the estate of the deceased testator (‘T’) on death because T made a lifetime gift of BP to e.g. his daughter (‘B.1.’), then in parallel with a CP claim e.g. by T’s son (‘B.2’) i.e. challenging the formal and/or substantive validity of T’s will, can B.2 apply to the FTT for the setting aside of the lifetime transfer of land to B.1 e.g. on the grounds of: PE/CT/lack of mental capacity (‘LMC’)/undue influence (‘UI’)?

If B.2 can, does & succeeds, then the BP falls back into T’s residuary estate. There may also be a failed PET for IHT – so can that thereby be rendered a nullity?

‘Standing’ – Para 26(2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (2013 No. 1169) states:

‘… an application must … unless a practice direction makes different provision, include — … (f) the applicant’s connection with the premises or property … (h) the result the applicant is seeking; (i) the applicant’s reasons for making the application; … (k) the name and address of every person who appears to the applicant to be an interested person, with reasons for that person’s interest …’

As the 1st task for a party asserting a beneficial interest is in the application, to clearly set out the basis upon which the beneficial interest is said to have arisen, then in a PE or CT claim the answer logically is yes.

Is ‘laches’ available as a defence? In principle – Yes.

‘The jurisdiction in relation to LMC & UI claims?’ – There does not appear to be much literature for practitioners about this, i.e. do such claims because of the burden of proof & complex factual matrix end up being referred upwards or side-ways, i.e. to the Upper Tribunal or to the High Court?

The interesting point is that if there is jurisdiction to entertain such applications, that they can be mediated by a FTT Judge/Mediator, in which case:

– no mediator & venue fees are payable;
– the style of mediation is both evaluative & facilitative;
– if settled, the incurrence of significant costs can be avoided;
– administration of the alteration of the register is dealt with efficiently.

I will research & untangle this for practitioners in an article that I will write & offer to Trusts & Trustees in early 2025. I will also discuss Mediation Advocacy skills in this context.