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gifts made before death may be set aside if the donor does not have mental capacity

Setting aside gifts – mental capacity

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The High Court has recently stepped in to set aside gifts made by a donor shortly before his death, and when he was suffering from dementia so his mental capacity was in question.

Not strictly speaking a ‘will dispute’, but readers will recognise some of the issues in Connolly v Connolly & Anor [2017] NICh 8 relating to the donor’s mental capacity as similar to those that can arise in a challenge to a will on the grounds of testamentary capacity.

The facts of Connolly v Connolly

John Joseph Connolly was a farmer. He inherited land from his family in 1954, and married his wife, Maura, in 1956. The couple lived in a small cottage on the lands he had inherited. Maura supplemented income from farming, and paid for improvements to the property they lived in as well as making other contributions. The couple had 7 children, not all of whom got on, with various allegations being made between them. In the years before his death, Mr Connolly made 3 transfers of land to 3 of his sons. The effect of these transfers was to leave Maura, his widow, with nothing when he died. 2 of the transfers were challenged in these proceedings. It was accepted that Mr Connolly was suffering from dementia at the time he died, but there was a dispute about when the transfers of land had taken place, and whether the dementia affected his mental capacity at that time.

The judge overturned the transfers of land.

  • It was his view, on the evidence, that the transfers of land had taken place in 2008
  • At that point in time, the deceased, Mr Connolly, did not have capacity
  • “[The] court however still exists to ensure that the law is upheld and most importantly that the rights of the weak, the vulnerable, and the infirm, both mentally and physically, are protected.” (para 41)

Handing over title deeds is not evidence of intent to transfer

The defendants in the case, 2 of the deceased’s sons, argued that when their father handed over the title deeds to the parcels of land concerned in the 1990s, this was in connection with his stated intention (as evidenced by the defendants) to transfer the properties to his sons. On the evidence, the judge considered that the transfer had taken place in 2008 when a deed had been executed effecting the transfer. It was the judge’s opinion that landowners often handed over title deed to their solicitor for safekeeping. The defendant sons could not rely on the action of their father handing over the title deeds as being an indication of their father’s wishes. This action was certainly not enough to effect the transfer of the land.

There may be incapacity, but not necessarily undue influence

It’s clear from reading the case report that the judge felt that the transfers of land “called out for an explanation”. He recognised that the actions of the deceased, leaving his wife with nothing, were disadvantageous. However, he did not think that there was a relationship between the deceased and the defendant sons that could arouse suspicion that the sons (or one of them) had exerted his influence on the deceased. On that basis, he did not consider there had been any undue influence.

The role of the solicitor in judging mental capacity

The test for mental capacity is the same for a transaction such as the transfer of land between 2 people (as happened in this case), as it is for making a will. Ultimately, the judge felt that the solicitors who had effected the transfers of land should have made enquiries similar to following the Golden Rule when drafting a will –

 If the solicitor has any doubts about the capacity of the elderly person to give a gift or make a will then the solicitor should ensure that the donor is medically examined. …

Further, the prudent solicitor acting in the circumstances described above will keep a detailed written attendance note of all the steps he has taken to ensure that the donor has capacity and/or the gift is not tainted by undue influence. Memory can be slippery and unreliable. A prudent solicitor will appreciate that it is unwise, if not foolhardy, to have to rely on his or her memory alone should the circumstances of any transaction be challenged in court at a later date.

In will dispute cases where capacity may be an issue, you should always ascertain what steps the solicitor took when drafting the will to make sure the Testator (or Testatrix) had capacity.

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A question mark over the steps you should take if you're concerned about a will

Concerned about a will? 4 steps to take

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You may feel helpless in the face of a will that has either disinherited you, or leaves you will very little. All this at a time when you are grieving for a relative or close friend and would have expected to be included in the will. The reality is that there are some steps you can take if you are concerned about a will, including registering a caveat and gathering evidence. Here are the 4 key steps to take if you are concerned about a will.

Register a Caveat

Once the estate of your relative has been distributed according to the terms of the will, it may be more difficult to recover assets or property that should have come to you. If you have concerns about a will, you can enter a caveat with the Probate Registry which means that probate can’t be granted. Once probate is granted, the executor can distribute the estate according to the will. A caveat prevents this for 6 months, and so the assets can’t be distributed. This gives you the opportunity to consider your claim in more detail, and take legal advice.
You can enter a caveat yourself – it’s a straightforward procedure that requires completing a form PA8, and costs £20. You can find out more on www.gov.uk

List the basis for your concerns

There are basically two types of claim you can bring if you are concerned about a will. You can challenge the validity of the will itself – perhaps it hasn’t been properly executed, perhaps you think someone persuaded your relative to leave you out of the will, or perhaps you think it is a fake. Alternatively, you can potentially bring a claim under the Inheritance (provision for Family and Dependants) Act 1975. A claim under the Inheritance Act does not challenge the validity of the will itself, but asks the court to redistribute the assets so that you receive a suitable amount. You will need to take expert advice about the strength of your claims.

Gather together any evidence you have

Finding evidence of behaviour or activity that supports your concerns can often be difficult when bringing a will dispute. If you do have anything that might be relevant – notes or letters from the deceased or other people you believe to be involved, medical records or correspondence from support services, information from friends or other relatives – these could all be important.

Act quickly

If you are bringing a claim under the Inheritance Act 1975, you have 6 months to do so from the Grant of Probate. You can also challenge distribution of an estate under the intestacy rules if you are not recognised under these. If you were living with someone, for example, but were not married or in a civil partnership, you would not be recognised under the intestacy rules, so you might bring a claim under the Inheritance Act. If you are challenging the validity of a will, there is no fixed time limit for doing so. However, if you delay in bringing a claim, you may find it more difficult to find strong evidence to support your claim. In addition, if the assets have been distributed already, you may find it difficult to recover your inheritance, even if your claim is successful.

Taking legal action to contest a will is a big step to take, but may be the only way to achieve fairness. Talking to an expert in contentious probate cases is vital. These cases can be tricky to fight, not to mention costly and lengthy, so you need to take advice. We represent many people on a ‘no win no fee’ agreement – get in touch for a free claim assessment.

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Does an adult child have to have a moral claim to succeed under the Inheritance Act?

The ‘moral claim’ of an adult child

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Does an adult child have to have a ‘moral claim’ to part of a parent’s estate in order to succeed in a claim under the Inheritance Act?

The Inheritance (Provision for Family and Dependants) Act 1975 allows an adult child to claim maintenance from the estate of a parent who has disinherited him entirely or left him only a small legacy. Whether the claim succeeds depends on the outcome of a careful balancing act. It requires the court to look at the circumstances of the claimant, and of other beneficiaries or potential claimants, and the size of the estate itself. A claimant who is able to support him or herself independently may have to show a moral claim in order to succeed with the claim.

The circumstances of the Claimant

The Inheritance Act, and more particularly claims by adult children under the Act, has been in the spotlight recently as it was the subject of a long running dispute recently determined by the Supreme Court. In the case of Ilott v Blue Cross & Others, the adult child, Heather Ilott, had been disinherited by her mother who disapproved of her choice of partner. The mother had rejected attempts at reconciliation and left her estate to a number of animal charities. The daughter had not done well in life, but lived independently with her partner and children, although most of their income came from benefits. She sought maintenance from her mother’s estate under the Inheritance Act, a claim the charities defended vigorously.

Within her arguments, Mrs Ilott asserted a moral claim to maintenance from her mother’s estate. The basis of this was that the estrangement was largely of the mother’s doing, and that she, the daughter, had attempted to seek a reconciliation, but had been rejected.

A moral claim – or some other obligation

It’s clear from the decision in Ilott that a moral claim is not an essential element of an Inheritance act claim. However, if the adult child is living independently and capable of doing so, there needs to be ‘something more’ for a claim for maintenance under the Act to succeed, however modest the income. This would be some kind of moral obligation, or some other responsibility owed by the parent to the child.

In the earlier case of re Coventry, the court made it clear that an adult child who was capable of supporting himself and had an income, albeit a small one, would not succeed in an Inheritance Act claim without ‘something more’:

There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made

Estrangement where the child sought reconciliation

In circumstances which bore some similarity to the Ilott case, the courts recently considered a case where the father had disinherited his children as they had not been to see him for many years. The claimant in Nahajec v Fowles, the Testator’s daughter from his second marriage, argued that the estrangement was largely due to her father’s behaviour and she had attempted reconciliations only to be rebuffed by him. The claim succeeded, and the daughter was awarded a sum to allow her to complete a veterinary nurse qualification.

Victims of abuse

There have been cases where an adult child has brought a claim against the estate of a parent who abused them. In the case of Marks v Shafier [2001] All ER (D) 193 (Jul), the court accepted that this could be sufficient to allow a claim under the Act. However, in the recent case of Ball v Ball, the abusing parent was the father and the will in question was the will of the mother, the abuser’s wife. Mrs Ball was upset that the children concerned took the abuse allegations to the police, after it had been dealt with within the family, and disinherited her children. In that case, the court made it clear that “…sexual abuse by someone other than the deceased does not have the same impact” [para 81 Ball v Ball].

There have been suggestions that the comments in Re Coventry about “some sort of moral claim” alluded to the need for a moral obligation in every Inheritance Act claim brought by an adult child. This is not the case. However, where an adult child is independent – however meagre that independence might be – there does need to be something more than just the relationship for the claim to succeed.

If you’d like to discuss the possibility of bringing an Inheritance Act claim for maintenance in respect of your parent’s will, we can help. Specialising in will disputes and Inheritance Act claims, we offer a free claim assessment, and will handle most claims on a ‘no win no fee’ arrangements.

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If you make your will while under a mistake, will a testamentary slip up mean you do not have testamentary capacity?

Mistake and testamentary capacity

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In the recent case of Ball v Ball the Claimants tried to argue that their mother’s will was invalid because she made a mistake – or rather that she made her will while under a mistaken belief, and lacked testamentary capacity as a result. The argument in this case failed – but it’s interesting to consider the question of whether a mistaken belief can invalidate a will.

A reminder about testamentary capacity

If the person making a will does not have ‘testamentary capacity’, the will is invalid. The test is set out in the case of Banks v Goodfellow. When making a will, the individual must

  • Understand the nature of making a will and the effect of doing so
  • Understand the extent of his (or her) property that his will covers
  • Understand claims that he should give effect to (those people – dependants – who should ordinarily be included in the will)
  • Not be suffering from any ‘disorder of the mind’ which has an impact on how his will is written

There are a number of safeguards that should be put in place by the professional will writer drawing up the will to check that their client does, in fact, have testamentary capacity.

Can a mistaken belief affect capacity?

There have been some cases in which a Testator or Testatrix has formed incorrect beliefs, mistaken beliefs about members of his or her family, and gone on to leave them out of the will. In Walters v Smee  [2008] EWHC 2029 (Ch) the Testatrix, Annie Latimer, died on 24th November 2004 leaving everything to her friends, Mr & Mrs Smee, in a will dated 21st October 2004. An earlier will dating back to 1998 had left a small legacy to a distant relative and had then left everything to Mr & Mrs Walters, the Claimants, who had been caring for Mrs Latimer for several years.

The judge in Walters v Smee was satisfied that the first 3 elements of the test in Banks v Goodfellow were satisfied. The question of testamentary capacity hinged on whether Mrs Latimer was suffering from a disorder of the mind which had an impact on how the will was written. In his own words, he had to be satisfied that “No disorder of the mind should have poisoned her affections, perverted her sense of right or prevented the exercise of her natural faculties; and no insane delusion should have influenced her will or poisoned her mind.” [para 7].

There was evidence that Mrs Latimer had, during the last months of her life, become confused, forgetful and easily distressed. Although it was not diagnosed, the judge accepted medical evidence that she was suffering from dementia, and the mistaken beliefs she had formed in respect of Mr Walters were as the result of the dementia.

Mistake symptomatic of underlying condition

Another case, which the judge in the Ball case came across after the first day of the Ball hearing is also relevant – that of Re Belliss (1929) 141 LT 245. A woman made a will leaving more to one daughter on the other on the basis that during her life she had given more assistance to the second daughter and wished to even things out. In fact, she was mistaken as to the extent of what she had done in respect of the second daughter while she was alive. The result was that the daughter provided for more generously in the will came out of it significantly better off.

In considering the arguments, the judge in Re Bellis made an important point

Mere mistake of fact as to persons or property would not stand in the way of probate

Essentially, the mistake by the woman would not be enough to challenge her capacity to make a will. The real question was whether there was an underlying condition that is evidenced by the mistake.

So, in the case of Walters v Smee – the mistaken beliefs Mrs Latimer had developed about Mr Walters leading to her changing her will were symptomatic of the undiagnosed dementia she was suffering from at the time she made her will.

It’s clear from these cases that a ‘mistaken belief’ won’t undermine someone’s capacity to make a will unless there is evidence of some other condition – insane delusion (mentioned in the Re Bellis case) or dementia, for example. Likewise, in an undue influence case, it would be necessary to show that the person making the will was operating under mistaken beliefs that had been created by the person accused of exercising undue influence.

If you have any questions about the validity of a will, get in touch. We are specialist lawyers handling all kinds of inheritance disputes and can usually do so under a ‘no win no fee arrangement’.

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Bruce Forsyth reportedly leaves everything to his wife to avoid Inheritance Tax and trusting that she will then distribute assets to his children and grandchildren

The trouble with Bruce Forsyth’s Will

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The recent passing of Bruce Forsyth, legend of the British entertainment industry, might not be something you would expect to see on a blog about will disputes. He’s left an enormous fortune and has many children and grandchildren – but he has also left a will – so what’s the problem?

What has caught our attention as contentious probate specialists is the suggestion that Mr Forsyth’s will leaves everything to his wife. Not so unusual you might think – but that’s not the end of it. Apparently, in a bid to avoid Inheritance Tax, Bruce Forsyth has left his estate to his wife on the understanding that she then makes use of her own ability to make tax free gifts to ensure that his children from 3 marriages, grandchildren and great grandchildren receive their shares of his fortune.

This is a very risky strategy to take. Assuming that this is the case, and Mr Forsyth has indeed entrusted his wife of 34 years to ‘do the right thing’, there are a number of potential issues that arise from this.

Inheritance tax Issues and ‘doing the right thing’

While it’s true that anything Mrs Forsyth gives away during her lifetime will not incur tax at the time, any gifts made within the 7 years of her death will be included in any Inheritance Tax calculation. She will benefit from her husband’s nil rate band giving a total of £650,000 that will be free of Inheritance Tax. This seems a huge amount – but measured against an estate estimated at some £17 million, the gifts that £650,000 could generate start to seem rather small. Mrs Forsyth is only 59 and unlikely to be anticipating her death any time soon – but it is always a possibility, so she may well limit her gifts so that they fall within this £650,000 limit.

The report we linked to above suggests that Mrs Forsyth will give away up to £650,000 – which seems likely to be linked to the nil rate band we’ve just mentioned. There is a big difference between £17 million and £650,000, especially when the £650,000 is apparently to be divided between 18 (6 children, 9 grandchildren and 3 great grandchildren).

We have no idea of the details of any distribution Mr Forsyth gave his wife, but it seems distinctly possible that if Mrs Forsyth limits her gifts to a total of £650,000 (and possibly less to account for any other gifts she might make to others) it could give rise to a claim by one or more of his children, grandchildren or great grandchildren seeking a greater piece of the estate.

A possible will validity claim

If some of Mr Forsyth’s family are unhappy with the arrangement, they might seek to challenge the validity of the will, perhaps on the grounds that he was the victim of undue influence. They would need to show that the will does not reflect Mr Forsyth’s true intentions, and that this is due to the behaviour of another person. It could be argued that Mr Forsyth’s true intentions were that his entire family should benefit under his will – indeed, the suggestion that he acted in that way that he did supports that argument. He had no desire to disinherit his children, he just wished to avoid Inheritance Tax. Could it be said that his will did not reflect his true intention because of the behaviour of another person – someone convincing him that he should leave everything to his wife?

Proving undue influence, while not impossible, can certainly be an uphill struggle. In this case, a person accused of exercising undue influence would almost certainly argue that it was the desire to avoid inheritance tax which prompted Mr Forsyth to draw up his will the way that he did.

An Inheritance Act claim

The Inheritance Act (Provision for Family and Dependants) Act 1975 allows dependants of the deceased – spouse, children, grandchildren, others being maintained by the deceased – to claim a share of the estate (or a greater share of the estate). Adult children are eligible to bring a claim for ‘maintenance’ under the Act. However, following the case of Ilott v Blue Cross and others in the Supreme Court earlier this year, the extent of what ‘maintenance’ amounts to has been reset. It is not unrealistic that we might see a claim for maintenance given the size of the estate – but it will very much depend on the facts of the individual claiming maintenance.

It may well be that Mrs Forsyth and the family will be able to settle matters between them – it may even be that Mr Forsyth’s will is not drafted in the terms reported in the article. However, it’s a useful opportunity to highlight the sort of situation that can often lead to a will dispute and cause a great deal of upset for families following the death of a loved one. As contentious probate experts, we would always advise people to seek specialist legal advice when drawing up a will.

Should you find yourself disappointed by a will or concerned about the way a will was drawn up, we can help. Get in touch to find out more about our legal services and the help we can give you to challenge a will.

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Keeling v Keeling looks at the deathbed gift

Keeling v Keeling – the failure of a death bed gift

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In a recent blog,we looked at the deathbed gift – or donatio mortis causa. Putting the case law into practise, in Keeling v Keeling, the courts have recently rejected a claim by a brother that his sister made a ‘death bed gift’ to him of her house, at the expense of other relatives.

The Facts of Keeling v Keeling

Stephen and Frank Keeling and Ellen Exler were siblings. Ellen died intestate in 2012. She had suffered a heart attack earlier in 2012 but had not required hospital treatment and had survived for over 6 months following the incident. Stephen and his wife had been involved in Mrs Exler’s care, visiting her regularly and doing shopping for her, but had then insisted that she moved into a care home, leaving behind a substantial property worth £900,000. Mrs Exler died 4 days after the move.

On her death, Stephen took out a grant of letters of administration in respect of his sister’s estate. He also registered the property in his name. He sent his brother, Frank, a cheque for a little over £3,000 as his part of the inheritance claiming that Mrs Exler had handed over the deeds to the house and told him she wanted him and his wife to have it. The claim was brought by the brother, Frank. Under the intestacy rules, Frank, along with the children of a fourth sibling who had already passed away, would have shared the estate.

The judge rejected Stephen Keeling’s claim that the house amounted to a death bed gift (a donatio mortis causa). He found that

  • If Mrs Exler had given the house to her brother in the way he claimed, she had done so at around the time of the heart attack in May 2012. The circumstances were such that she could not have made the gift “in contemplation of her death”;
  • On the evidence, when Mrs Exler handed the deeds of the property to her brother, he handed them in turn to Mrs Exler’s solicitor, suggesting that she had given him the deeds for safekeeping only. On this basis, it could not be said that the house had been “…parted with, or delivered to the intended recipient in some way…
  • Mrs Exler had been assessed by an old age psychiatrist as lacking capacity to manage her affairs. However, that aside, Mrs Exler’s solicitor had encouraged her to make a will. Although Mrs Exler declined to do so, the fact that she had an opportunity to make a will went some way to defeating a donation mortis causa.

Inconsistent evidence

It’s clear from the reports of the judgment that the judge did not think much of Stephen Keeling’s claim that his sister had given him the property. There were inconsistencies in his evidence which meant that the judge did not accept that the conversations Stephen Keeling relied on had ever taken place.

Limited role of the death bed gift

Even if the conversations Stephen Keeling gave evidence about had taken place, the judge held that there would be no death bed gift. As already mentioned, the conditions were not fully met, so that the gift was not in contemplation of death, and Mrs Exler had not handed the deeds and keys over as a sign of ownership. She had done so for safekeeping.

As we mentioned in our earlier blog, it seems that donatio mortis causa has a very limited place in modern society. As in this case, upholding a deathbed gift can significantly reduce the size of an estate to the detriment of other beneficiaries. The courts will be scrupulous in their approach to these cases. Potential claimants will need to have very strong evidence to show that all the conditions are met.

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In Ball v Ball the court would not uphold a will dispute in which teh children had been abused by their father and the husband of the testatrix

Ball v Ball and will disputes following sexual abuse

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In the recent case of Ball v Ball [2017] EWHC 1750 (Ch), the court had to deal with a will dispute which arose when the wife of an abuser disinherited 3 of the children who reported their father to the police.

The impact of sexual abuse on a victim can last all their life. Even on the death of their abuser, they may continue to suffer. This is certainly the case if the abuser is a family member who then disinherits the victim – a final act of retribution, perhaps, in retaliation for reporting the abuse, or simply a final act of control. This is recognised by the courts in the context of an abuser/victim relationship – but what if the Testator was not the abuser?

The Facts in Ball v Ball

3 of the children of James Ball and his wife reported their father to the police in relation to sexual abuse that he had carried out. The abuse was known about from as early as the 1960/70s. Mrs Ball, talked to all 11 of their children about whether they had other allegations to make. At that point, no report was made to the police. Following a family dispute in 1991, the 3 children who had been abused previously then reported their father to the police. Mr Ball admitted the offences in respect of 2 of his children and received a suspended sentence. In 1992, Mrs Ball made a will which effectively disinherited the 3 children who had made complaints to the police. She felt the complaints were exaggerated even though she accepted there was some truth in them. She was also upset that the complaints had been made public when she thought they had dealt with them within the family. Mr Ball died in 2004, Mrs Ball in 2013.

The children concerned brought a will dispute claim. They argued that their mother had made in 1992 claiming that she had been subject to undue influence, or lacked mental capacity to make the will. They also brought a claim under the Inheritance Act (Provision for Family & Dependants) Act 1975. The argument in relation to testamentary capacity was that Mrs Ball was misled as to the facts and believed that her husband was innocent when he was actually guilty. On the point of undue influence, the claimants argued that the Testator made her will at the same time as her husband, used the same solicitor and was under great stress at the time.

The judge rejected all the claims.

  • On the facts as he (the judge) found them, Mrs Ball was aware that 3 of her children had reported their father to the police and that he had admitted some of the claims of abuse. She was not misled as to his guilt or innocence.
  • Mrs Ball was the dominant partner in the relationship and the fact that they made their wills at the same tie and using the same solicitor, and that Mrs Ball was under a lot of stress, did not amount to positive evidence of undue influence on the husband’s part over his wife.
  • The sexual abuse by the father did not give rise to a ‘moral claim’ by the claimants under the Inheritance Act in respect of their mother’s estate.

Will dispute, testamentary capacity and ‘Mistake’

Although the judge found, on the facts, that the wife was not misled as to her husband’s abuse of their children and his guilt, he went on to consider whether a mistake could negate testamentary capacity. Reviewing a number of authorities that were introduced during the hearing of this will dispute, the judge found that a mistake would only be relevant when it was a symptom of some underlying condition – for example dementia – that removed capacity. In Ball v Ball, it was accepted that Mrs Ball was not suffering any physical or mental illness at the time she made the will, so even if there had been a mistake (which the judge found there was not), in these circumstances it would not have been enough to challenge Mrs Ball’s testamentary capacity.

Moral Claims under the Inheritance Act following Ball v Ball

Following the Supreme Court in Ilott v Blue Cross, the issue of whether there is a ‘moral’ element to a claim by an adult child under the Inheritance Act has come to the fore. In that case, the Testatrix had disinherited the daughter apparently in retaliation for her choice of partner, and despite attempts by the daughter to seek reconciliation. While accepting the proposition that sexual abuse by a testator could be taken into account, following the judgment in Marks v Shafier [2001] All ER (D) 193 (Jul), in this case, the Testatrix was not the abuser. When looking at all the other circumstances, including the size (modest) of the estate, the financial circumstances of all the beneficiaries as well as the claimants. In Ball v Ball, Mrs Ball’s clear intention to disinherit the claimants throughout the 20 years following the will’s execution, the judge could not uphold the Inheritance Act claim.

Above else, this case illustrates the fact that however distressing the circumstances may be that lead to the will dispute, the courts can only declare a will to be invalid, or award maintenance under the Inheritance Act, if the legal requirements to do so are met. While it may seem harsh that these 3 claimants received nothing from their mother, the will was a valid will, and the conditions to make an award under the Inheritance Act were not met.

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In Nahajec, the Court awarded maintenance under the Inheritance Act for a daughter to pursue veterinary nurse studies

The Inheritance Act in action post-Ilott

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A couple of weeks ago, we published a blog about testamentary freedom following Ilott v Blue Cross – and now we can report on what seems to be the first case decided under the Inheritance Act since the Ilott v Blue Cross decision.

In the first judgement to look at the question of maintenance under the Inheritance Act for an estranged adult child since the landmark decision in Ilott v Blue Cross, a judge has awarded £30,000 to a Testator’s daughter despite his express wishes to disinherit all his children.

The Facts of Nahajec v Fowle

This claim was made by Elena Nahajec. Her father, Stanley Nahajec, made a will on 7 July 2015 by which he disinherited his children – Ms Nahajec, who was his daughter from his second marriage, and his 2 sons from his first marriage. He explained his decision to disinherit in writing, as follows:

…I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare.

All of my children are of independent means and have or have had their own life and family and are, to my knowledge, sufficiently independent of means not to require any provision from me.

In the circumstances I do not feel it appropriate for (sic) necessary to make any provision for them in my will…

Mr Nahajec died on 19th July 2015, shortly after making his will. His daughter brought the claim arguing that the estrangement was due to the actions of the Testator rather than any behaviour on her part. She argued that she had attempted to rekindle the relationship on several occasions, but that he had always rebuffed her attempts, and had ‘never been there for her’ as she grew up. Having heard evidence from one of Ms Nahajec’s half-brothers that he had received similar treatment by his father, and reviewing the decision of the Supreme Court in Ilott v Blue Cross, the judge decided:

  • Mr Nahajec’s will did NOT make reasonable provision for his daughter
  • The estate was of sufficient size to justify provision for the daughter, as well as provision for the sole beneficiary and other claimants (the claimant’s half-brother had also made a claim which had been settled)
  • Financial provision should be made in the sum of £30,000
The importance of the facts of each case

The facts of this case may seem very like those in Ilott: an estranged daughter who had made attempts to maintain a relationship with the deceased parent. The judge made it clear that his decision was not made because of the similarity to the facts in Ilott, but as the result of the facts in the case before him. Every case will be different, and so must be dealt with on its own facts, and not because it is similar to a previous case.

The judgement in this case demonstrates clearly the balancing act the court should carry out, weighing up all the factors to determine the issues in the case. Recognising that the case was fact specific, the judge went on to weigh up the circumstances of both the claimant – the estranged daughter, and of the sole beneficiary under the will. The judge was clearly impressed by the honesty of the Testator’s daughter and the relatively modest nature of her claim. She sought money only to enable her to complete a veterinary nursing course.

Assessing financial provision

The Claimant had initially claimed the sum of £70,227 to cover a number of elements including fees to cover resitting GCSEs to enable to gain the appropriate qualifications to then go on and train as a veterinary nurse; the fees for the veterinary nursing course; transport costs whilst on the veterinary nurse course including the purchase of a car; a sum to discharge indebtedness; and a sum to cover her living expenses while she studied. The proposal was reduced following a concession that the fees for the veterinary nurse course could be funded by a student loan.

The judge considered that an award simply to cover the Claimant’s indebtedness would be too little, but that an award of £59,000 (the original amount claimed less the veterinary nurse course fees) would be too high. He was considering a claim by an adult child, not a spouse, and as such had to confine his award to ‘maintenance’. He therefore awarded £30,000 as being a reasonable amount – his “…best estimate of the capitalised cost of maintenance for a reasonable time going forward to take into account the possibility, albeit contingent, of the claimant undertaking a course which ultimately results in her becoming a veterinary nurse and which enables her to look after herself financially if such a course is undertaken.”

Any claim bought under the Inheritance Act by an adult child will depend on the facts of the specific case, so this is a useful illustration of how the facts might play out – in the balancing act that must be carried out by the judge deciding the different elements of the claim. If you feel that your parent’s will fails to make reasonable provision for you, we can help talk you through the issues and work out the best way forward. Get in touch with us today.

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When it comes to witnessing a will, it's the how that's important not the where, following Wilson v Lassman

Witnessing a will – the importance of ‘how’ not ‘where’

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When it comes to witnessing a will, it doesn’t matter where it takes place – in an office or on a car bonnet – as the court found in Wilson v Lassman recently.

You might think that a will must be created in solemn circumstances, perhaps there is some requirement that witnessing a will must be carried out indoors to be valid. The truth is that as long as the will has been signed and witnessed in the correct way, where this takes place is irrelevant – as the court found in the case of Wilson v Lassman.

The Facts

When Mr Wilson made his will, he drew it up on a will form, himself without the assistance of a solicitor or will writer. Having done so, he signed the will before meeting with his executors, who then signed the will on the bonnet of Mr Wilson’s car. In fact, the executors had been working on a car on a neighbouring driveway. Mr Wilson called them over, asked them to witness his will, and they did so. Sometime 4-5 years after Mr Wilson’s death in 2011, his estranged son, who had been disinherited under the will, became aware that his father had died. He was out of time to bring an Inheritance Act claim, although did take steps to apply for the permission of the court to bring such a claim. He then amended his claim to challenge the validity of the will on the grounds that it had not been properly executed.

Preparations for the case involved the use of enquiry agents to locate the witnesses and establish exactly what had happened. During the course of this process, some of the evidence appeared to conflict and suggested that the will had not been properly executed. In the end, though, the will was upheld as valid.

The Court found that

  • The will had been signed by Mr Wilson before he called his witnesses over.
  • However, Mr Wilson had ‘acknowledged’ his will and his signature in the presence of the witnesses
  • The conflict in the witness evidence obtained by the enquiry agents arose because one of the witnesses was suffering from memory loss issues at the time his statement was prepared (not when he witnessed the will).

Acknowledging a signature

The requirements for a valid will are set out in s.9 of the Wills Act 1837. A valid will must be in writing and signed by the person making the will (the Testator). It must appear that the Testator intended to give effect to the will. The signature must be made or acknowledged by the Testator in the presence of two or more witnesses, who must be present at the same time. Each witness must either attest and sign the will or acknowledge his signature in the presence of the testator.

In this case, it was accepted that Mr Wilson, the Testator, had signed the will before he met up with the witnesses. This was not fatal, though, because Mr Wilson then acknowledged his signature in front of both witnesses.

Location of signature irrelevant

The exact location where witnessing a will takes place – in this case, Mr Wilson’s car bonnet – is largely irrelevant. What this case shows if anything is that where a will is executed does not matter – only that the requirements of s. 9 of the Wills Act are met. Although ultimately the Claimant, Mr Wilson’s disinherited son, failed, the circumstances in which the will was drawn up – the DIY will, the informal nature of the execution – did bring into question the validity of the will. This led to no doubt lengthy and expensive preparations for a court hearing which could have been avoided had Mr Wilson taken a more formal approach to drawing up his will.

If you are concerned about the validity of a will, it’s worth taking advantage of our free claim assessment to understand the grounds on which you could bring a claim, and your likelihood of success.  Get in touch using our contact form, or by calling 020 3322 5103

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playing games with inheritance and the principle of testamentary freedom following ilott v blue cross

Testamentary freedom and the risks of relying on inheritance

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Can adult children ‘rely’ on receiving an inheritance from their parents? Or is this a risky game to play, following what has been seen as a restatement of the principle of testamentary freedom in Ilott v Blue Cross & others?

Following the case of Ilott v Blue Cross & Others, a lot has been written about what the Supreme Court’s decision means for those making a will. The feeling is that the decision shifts the emphasis back to the principle of testamentary freedom – that people should be free to leave their property and money as they choose. We reported on the Ilott case when the decision was released. Now that the dust is settling, we take another look at what the case actually means for adult children who are disappointed by a parent’s will, and claims brought by them under the Inheritance (Provision for Families and Dependants) Act 1975 (the Inheritance Act).

Testamentary Freedom and the Inheritance Act

The principle of ‘testamentary freedom’ is a long-standing principle in English law. It lays down a presumption that a UK citizen is free to leave his or her money and property as he or she likes in a will. This should be looked at “…clearly and impartially, without allowing emotion or pity for children or dependants to cloud our view. Based on this principle alone, an individual would be unwise to rely on receiving an inheritance, and from making certain lifestyle decisions based on that. An example of such a decision would be choosing not to buy a property in anticipation of inheriting the family home on the death of a parent.

All is not lost, however, because the Inheritance Act contains a provision by which certain people, including a child of the deceased, can bring a claim for ‘reasonable financial provision’ or ‘maintenance’ against the estate. This does not prevent a Testator leaving his estate how he chooses – but it does mean that the courts may intervene and carry out a certain redistribution exercise pursuant to the Inheritance Act in some circumstances.

Adult children claiming under the Inheritance Act 1975

An adult child claiming under the Inheritance Act must show that the parent did not make reasonable financial provision for them in their will. The adult child must show that this failure to provide was unreasonable. If the failure to provide was unreasonable, the court will assess what reasonable financial provision ought to be made for the child ‘now’.

This is assessed against a number of factors set out in section 3(1) of the Inheritance Act 1975, as follows

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

It’s important to remember that this assessment is fact specific too. However, the Supreme Court in the Ilott case made it clear that the redistribution exercise that the courts can carry out under the Inheritance Act should not be an exercising in either rewarding good behaviour or penalising bad behaviour on the part of either the child or the deceased. The court’s role is to establish what reasonable financial provision would be, given the adult child’s circumstances and the competing interest of other beneficiaries of the will – or other claimants under the Act.

A ‘moral’ claim

In addition to the objective question of whether the Testator acted reasonably, the Supreme Court confirmed the need for some ‘moral’ element to the claim – “…beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made” (Oliver J). The extent of what will amount to a ‘moral’ claim will no doubt develop over time.

More weight given to elderly or disabled children

If the adult child is elderly or disabled, this will carry more weight with the court; it is also possible that the courts will give more weight to a claimant relying on State benefits, although this view did come under some criticism by the Supreme Court. It will always be a balancing act – perhaps a claimant reliant on State benefits because he or she has significant caring responsibilities for their own child will be recognised over a claimant facing fewer barriers to work.

A shift in emphasis but no change in the law

It’s important to remember that the law hasn’t changed following Ilott – adult children still have a right to make a claim for reasonable financial provision under the Inheritance Act 1975, and each case will be scrutinised by the courts unless a settlement is reached through before reaching a full hearing. In the Ilott case, the original claimant, Heather Ilott, still received an award – her mother had not made reasonable provision for her in her will. However, the level of the award ended up being reduced. What does seem clear is that the principle of testamentary freedom is still very much alive, and an adult child should not assume that they will be able to succeed in a claim, should they be left out of a will.

If you have been left out of a parent’s will, or feel that you should have received more, our advice is to talk to a specialist will dispute solicitor who will assess your claim and advise you on the best way to proceed.

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trust law in complex - in Wodzicki v Wodzicki the court had to consider a trust scenario in the context of intestacy

Intestacy, trusts and beneficial ownership of property

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Intestacy  – dying without a valid will – can cause all sorts of legal complications for your loved ones. In this case, the Court of Appeal had to consider the complex area of trusts, and the ownership of a property occupied by the deceased’s daughter, but owned jointly by the deceased and his second wife.

The Facts

The claimant, Juliette Wodzicki, lived in a property in London which was registered to her father, George, and to George’s second wife, Monique. Juliette had occupied the property with her children since it was purchased in 1988. She paid all the outgoings on the property. George visited but never lived in the property, and Monique had never been to the property by the time George died intestate in 2010. Monique sought possession of the property. Juliette counter-claimed that she was the sole beneficial owner of the property. She said that George and Monique had allowed her to live in the property for her life, and that George had promised to transfer the legal title to her once the loan taken out to purchase the property had been paid off. Monique did not accept that there had been any such promise.

The County Court found that Monique held the property on trust for Juliette and for herself. The extent of the ‘beneficial interests’ of each of them was to be determined at a later hearing. Juliette appealed this decision, but did not succeed.

The Court of Appeal held

  • The County Court judge was entitled to make the finding that he had made
  • The approach in Jones v Kernott which dealt with the ownership of a family home of a cohabiting couple who had subsequently separated, was not applicable in this case
  • There was nothing to suggest that Monique had intended to make a gift of the property to Juliette, or that the parties were once close, as in the Jones v Kernott

Resulting Trusts and Constructive Trusts

The case involved a certain amount of analysis of whether the property should be held on a ‘resulting trust’ or a ‘constructive trust’. A resulting trust is designed to give effect to the intentions of the parties involved. The County Court judge found that George “intended his wife [Monique] to be the joint owner and never made known to her expressly or impliedly that his daughter [Juliette] was to be the sole owner.” A constructive trust, on the other hand, is imposed regardless of the intentions of the parties, to correct a situation where someone – in this case it would be Juliette – had acted to his or her detriment in the belief that in doing so they would gain a beneficial interest in a property. The County Court decided that this situation was one where a resulting trust was the correct approach. The Court of Appeal could not overturn that decision.

Proprietary Estoppel

Alongside the argument that the County Court should have found a constructive trust, Juliette also argued that she was in fact the owner of the property through the application of a principle known as ‘proprietary estoppel’. This concept shares some similarities with the constructive trust – it requires there to have been a promise or assurance which is relied upon by the claimant, to their detriment. ‘Detriment’ has a wide meaning. Juliette’s argument failed because, as a matter of fact, Monique did not know about the promise George had made to transfer the property to his daughter.

The importance of making a will

This case is another which serves to highlight the importance of making a will in the first place. Had George done so, he could have been clear about his intentions with regards to the ownership of the property. It also highlights the complex nature of the law as far as trusts and the beneficial ownership of property is concerned.

We regularly deal with issues arising from intestacy and trusts law – please get in touch if this is a situation you find yourself in. We offer a free claim assessment and can usually represent out clients under a no win no fee arrangement.

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A statutory will is a lifesaver for those who do not have capacity to make a will, but they are not always immune from challenge

Challenging a Statutory Will – ‘best interests’ count

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In the recent case of ADS v DSM (2017 EWCOP 8) a Statutory Will drawn up by the Court of Protection was overturned following a challenge by one of the beneficiaries.

In most cases, a statutory will is unlikely to be challenged. Despite that general rule, in ADS v DSM, one of the sons of the incapacitated testator did successfully challenge his mother’s statutory will because of failures in the preparation of the case.

The Facts of ADS v DSM

The Claimant’s mother lacked capacity to make a will so her property and financial affairs deputy applied to the Court of Protection to have a statutory will prepared which would divide her estate equally between her sons, A and D. Despite this, the statutory will that resulted left only 25% of the estate to A, while D was to receive 75%. The Official Solicitor’s view was that an equal distribution of the estate would not reflect the mother’s true feelings – there was a history of dispute between the mother, P, and A, and evidence had been given that the mother had often indicated that she intended to disinherit A.

On appeal, the Court of Protection found that the statutory will had not been correctly prepared. He drew up a new Statutory Will, the contents of which are not known. What he did make clear were the steps that had to be taken when making a statutory will – and which, if not followed, could form the basis of a challenge such as in this case. These were:

  • Careful identification of the issues of fact & law
  • Consideration of how to involve the incapacitated person, how to ascertain his or her wishes & feelings
  • The involvement of the Court of Protection in other legal proceedings involving the parties before the civil courts if the judge is not nominated to approve Court of Protection matters

Statutory Wills – ‘best interests’

Where an individual lacks mental capacity, the Court of Protection can make a ‘statutory will’ on that person’s behalf under s.18(1)(i) Mental Capacity Act 2005. This avoids the likelihood that any will the individual makes him or herself can be challenged following the case of Banks v Goodfellow . Anyone can apply for a statutory will to be drawn up, although it is easier for someone who has already been appointed as Attorney or a Deputy as they will not have the additional hurdle of proving that the person concerned does not have mental capacity.

On receipt of an application, the Court of Protection will bring in the Official Solicitor who looks at the application and the circumstances from an independent perspective. The Official Solicitor, and anyone else involved, can make representations to the Court of Protection as to the contents of the statutory will.

In drawing up a statutory will, the Court of Protection must not try and think what the incapacitated person would have done – but must take a view as to what is in his or her ‘best interests’, taking into account all the factors. What a person might or might not have done may form part of this consideration, but is not the only thing to consider – another factor is how the incapacitated person would be remembered and whether they had done ‘the right thing’.

The risk of undue influence

One of the key issues in this case was the fact that P, the mother, was living with D at the time of the inquiries in relation to the statutory will. The visitor from the Court of Protection came to D’s house and interviewed her there, while D and other members of his family were present in the property. There may be circumstances, such as this where there had been a history of dispute and allegations of undue influence, where it might be appropriate for such an interview to be carried out at a neutral venue. However, if this would add to the anxiety and confusion suffered by the incapacitated person, it might be counter-productive.

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Don't get stuck in checkmate when you challenge a will validity - consider these 5 points before challenging a will

Challenging will validity – 5 points to consider

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Taking legal action that results in challenging will validity is a big step. There are a number of factors to consider before deciding what to do.

What happens if the will is declared invalid? This is probably the most important consideration. If the challenge to will validity is successful and the will you are concerned about is declared invalid, the estate of the deceased will then be distributed according to the previous will – or if there is no will, then the rules of intestacy. Depending on your relationship to the deceased, you may end up receiving less than under the will you are challenging. More fundamentally, if you would not benefit either under the previous will or under the intestacy rules, you are unable to challenge the will because you do not have ‘an interest’ in it.

What will it cost? Legal action is a significant expense, and challenging will validity is no exception. Assistance is not available under the Community Legal Service (formerly known as Legal Aid) for this type of legal action, so you will need to be able to fund the claim privately. Many firms offer ‘no win no fee’ arrangements which offer more certainty in respect of the legal costs. However, even if you are successful, the legal fees may reduce what you actually receive once the ‘dust has settled’ quite significantly. You can read more about the costs of challenging a will here.

What evidence do you have? Evidence – what you have and evidence you might need is something you will need to discuss with your solicitor. Evidence is a major consideration in challenging the validity of the will.  Without evidence, you are unlikely to succeed in your challenge. The irony of any will dispute is that the person who can give the best evidence about the will – the circumstances in which it was drawn up and why it was been drawn up in the particular way – has passed away. You will therefore be relying on the accounts of other people when challenging will validity: perhaps doctors, close friends, the solicitor who drew up the will, those who witnessed the will. Some of these people may be people who benefit under the will (perhaps at your expense) – and this can be problematic.

How long will it take? In the ‘worst case’ scenario, a will dispute where there are points of law to be considered can take many years to resolve a will dispute. The case of Ilot v Mitson finally concluded earlier in 2017 with a Supreme Court decision, some 10 years after the first judgement in the case. 10 years is excessive, and it is unlikely that your will dispute will take this long. On the other hand, if you end up going to court, rather than resolving the dispute using Alternative Dispute Resolution, it can take at least a year to eighteen months to reach a court hearing.

Will relationships be damaged? It is important to bear in mind that challenging the validity of a will can have some serious consequences for your family dynamics. Perhaps you are disappointed that a will leaves something significant (a property, perhaps, or a share of a business) to a sibling and you feel you have been treated unfairly. We do understand that this can be an exceptionally distressing situation to be in, however, legal action can damage family relationships very deeply and for lengthy periods of time. It is worth bearing this in mind especially if you challenge involves accusing another family member of acting improperly. The situation is less problematic if the will concerned leaves the bulk of an estate to a non-family member and your family is united in a concern that foul play has led to this situation.

These are the main considerations you should weigh up before challenging a will. You may also find it helpful to discuss your case with a solicitor before deciding whether to proceed or not. Every case is different and has its own considerations. We offer a free claim assessment for people considering their position – why not get in touch?

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how long will it take to resolve a will dispute

How long does it take to resolve a will dispute?

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How long does it take to resolve a will dispute? You may have read about the long-running case of Ilot v Mitson which involved a dispute about a will in which a woman left her estate to animal charities rather than to her estranged daughter. The legal process took over 10 years, from the first court decision, to the final decision earlier in 2017 from the Supreme Court. While it’s unlikely to take 10 years, any legal action can take a long time, so it’s worth bearing in mind how long it can take to resolve a will dispute.

Are there any time limits?

Different types of legal action have different time limits. You may be aware of this from other types of legal action you may have been involved in – for example a claim for personal injury. If you are bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you have 6 months from the date of the grant of probate to start your claim. If you are bringing a claim challenging the validity of a will (and not a claim under the 1975 Act) there is no time limit. However, the longer you leave it, the harder it may be to gather good evidence to support your case.

Do I launch straight into a court process?

Assuming that you bring your claim within 6 months of the grant of probate (whatever type of claim you are bringing), it is likely that there will be a certain amount of preparation and discussion before you get close to a court. It may be possible to resolve your dispute relatively quickly through an exchange of correspondence and a process of ‘disclosure’ with solicitors representing ‘the other side’: this may be the executors of the will, the other beneficiaries under the will, or a combination. This process has the benefit of allowing both sides to consider the evidence and to take decisions based on all the facts, potentially helping to resolve a will dispute more quickly. Even if it does not allow for a successful conclusion of the dispute at that stage, it may well open the way for Alternative Dispute Resolution.

Can Alternative Dispute Resolution speed things up?

Alternative Dispute Resolution including Mediation can offer a number of benefits to those involved in a will dispute, not least the fact that it can result in a swifter conclusion of the matter. Mediation is something we use regularly, and you can read more about mediation, and its role in a will dispute, here. Rather than waiting for court time, the people involved in the will dispute agree to appoint a mediator, and set up the mediation themselves. You can use mediation at any stage before reaching trial, so even if initial attempts to mediate fail, it may be possible to conclude proceedings through mediation at a later stage, still saving time.

Does using ADR delay things?

If you have started court proceedings, these will continue to unfold regardless of whether you are attempting to seek a mediated conclusion to the proceedings. The court’s timetable is inevitably slower than any timetable of negotiation and/or mediation – and should you reach a conclusion through ADR, the court proceedings can then be withdrawn.

If I can’t mediate – or the other side won’t – how long am I looking at?

It can take a year or more to get to an initial hearing in court. As those involved in Ilot v Mitson – and others – have found, this is not always the end of things. Should one side decide to appeal a decision, the will dispute can continue for some time, first to the Court of Appeal, then to the Supreme Court – although this is the exception rather than the rule, and means there is an important point of law involved in the case.

Highlighting the potential length of time it may take to resolve a will dispute is not intended to put you off. However, it’s important to be realistic about how long it may take – and how long it will be before you can move on. Get in touch with us to discuss your situation and the details of the will dispute you are considering. We offer a free claim assessment , and will be able to give you a better idea of how long things may take once we have reviewed the facts of your case.

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As a surviving spouse, does your claim under the Inheritance Act survive if you then die?

Testing whether Inheritance Act Claims die with the Claimant

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In this blog we look at the situation of claims under the Inheritance Act and whether the right to claim continues if the Claimant dies during proceedings.

Some legal actions survive even when a claimant has died – so for example in a personal injury claim, the personal representatives of an injured Claimant can continue to pursue the claim after the Claimant has died. Equally in these cases, a Claimant can continue to pursue a claim against a deceased Defendant. The position is different in Inheritance Act Claims. It is generally understood that any claim under the Inheritance Act dies with the Claimant. This was challenged in a recent case Roberts v Fresco [2017] EWHC 283 (Ch) – and we look at the position.

The Facts of Roberts v Fresco

Mr and Mrs Milbour married in 1973. The y had no children together, but Mr Milbour had a daughter (the first Claimant) and a son who had died in 2004. The son’s surviving daughter was the second Claimant. Mrs Milbour had a daughter, the defendant. The couple died within a few months of each other, Mrs Milbour on 5th January, Mr Milbour on 20th October, 2014. Mrs Milbour’s estate was valued at over £16 million. In her will, she left her husband £150,000 and an interest in the income of £75,000. Mr Milbour’s estate amounted to £320,000 including the inheritance from his wife. This was left to the Claimants, who were originally to be his executors. By codicil, the Defendant and her husband were made executors, although the Claimants remained sole beneficiaries.

In the time between his wife’s death and his own, Mr Milbour could have brought a claim under the Inheritance Act (provision for Dependants) Act 1975 (the Act), but did not do so. The Claimants brought a claim, amended in November 2016, to bring a claim under section I(1)(a) of the Act – a claim that Mr Milbour could himself have brought before he died.

The Court did not agree with the Claimants – they could not make the claim under section 1(1)(a) that had been open to their father

  1. There was already authority, in Whytte v Ticehurst [1986] Fam 64 to say that the right to claim by a surviving spouse under the Act was personal to that surviving spouse
  2. The right to claim under the Act is not a ‘cause of action’ which survives – but a ‘hope or contingency’
  3. There was no breach of Article 1 of the Human Rights Act

Not a cause of action but a ‘hope or contingency’

The court confirmed previous decisions identifying the right to claim under section 1(1)(a) is not a ‘cause of action’ but a hope or contingency. It only becomes a ‘cause of action’ once the assessment under section 3 of the Act – whether reasonable provision has been made for the spouse has been carried out. It would be interesting to see if a court reached a different decision if a surviving spouse had died after the section 3 assessment but before an order had been made in his or her favour.

An estate is not a ‘natural or legal person

The argument that it was a breach of Article 1 of the Human Rights Act failed because an estate is not a ‘natural or legal person’. Although Mr Milbour would have had a reasonable expectation of succeeding in a claim under the Act – the claim being the ‘possession’ protected by Article 1. However, although Mr Milbour was a ‘natural or legal person’, his estate was not, so the Claimants could not rely on a breach of Article 1 to support their claim.

Ultimately, if someone wishes to claim under the Inheritance Act 1975, they must do so expediently. Had he not died, Mr Milbour would, in any event, only have had 6 months from the grant of probate to bring his claim. Although Mr Milbour’s claim, had it succeeded , would have been worth a significant amount of money, his own beneficiaries could not pursue the claim when he had, for whatever reason, chosen not to.

If you feel that your spouse’s will has not made reasonable provision for you, we can guide you through bringing a claim under the Inheritance Act. While this will be a sad and distressing time, and legal action may be the last thing you are thinking about, there is a 6 month time limit to bring such claims, so it is worth talking to us sooner rather than later and we will do what we can to help.

Photo by Álvaro Serrano on Unsplash
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Can pills or medication affect your testamentary capacity?

Testamentary capacity and the effects of medication

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In the recent case of White v Philips [2017] EWHC 386 (Ch), the High Court had to consider the effects of medication on a Testator’s testamentary capacity

As we’ve mentioned before, one of the grounds for challenging a will is to argue that the Testator, the person making the will, did not have the necessary capacity to do so. In many cases, the challenge will be made in respect of the testator’s deteriorating mental condition – often accompanied with a diagnosis, or at least a suspicion, of Alzheimers, some other form of dementia or evidence of failing memory and confusion. Another possibility is to argue that the Testator’s testamentary capacity has been impacted through medication.

The facts in White v Philips

Mr Raymond White and his wife Linda married in 1988. They had no children as a couple but each had 3 children from previous relationships. They owned a house as joint tenants. Mr White was diagnosed with terminal cancer in July 2009. From around April 2010 his relationship with his wife deteriorated sharply. Mr White left the house to live with his daughter, the defendant, on 15th May 2010. Whilst in hospital, on 28th May 2010, Mr White gave instructions for his will, including the severance of the joint tenancy so he could leave his share of the house to his daughter, the defendant, although his wife was to be able to reside in the house until her death or she began cohabiting with someone else. The will was executed on 4th June and Mr White passed away on 22 July 2010.

Mrs White brought the claim, challenging the will on the grounds that her husband lacked testamentary capacity as a result of the medication he was taking. Mr White’s daughters, argued that it was as the result of Mrs White’s abusive behaviour towards Mr White. Having heard evidence from a number of people, including expert psychiatric witnesses for both claimant and defendant, the judge found

  1. There was sufficient concern about the Testator’s capacity to shift the burden of proof on to the defendant to prove that the Testator did indeed have the necessary testamentary capacity.
  2. However, in the judge’s decision, the defendant was able to prove that the testator did have the requisite capacity both when he gave instructions and when he executed the will, in accordance with the 4 stage test in Banks v Goodfellow
  3. Finally, the judge concluded that even if there was some ‘disturbance of the mind’, the contents of the will demonstrated that it was not enough to “…poison his affections or prevent his sense of right or … otherwise … influence Mr White in the distribution of his estate.” (paragraph 68 of the decision)

Shifting the burden of proof

There was no suggestion that Mr White’s will had not been properly executed or was irrational on the face of it, so it was up to Mrs White to raise real doubts as her husband’s testamentary capacity as the result of the medication he was taking, in order to shift the burden of proof onto the defendant daughter to show that he did in fact have capacity. Shifting the burden of proof where the will appears to be properly executed is not straightforward. As the court said in Hawes v Burgess… if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed”.

In this case, there was enough evidence for the judge to find that there was ‘real doubt’ over the Testator’s mental capacity when he gave instructions and when he executed the will. The burden of proof shifted, but the daughter was able to show that the test in Banks v Goodfellow was satisfied. The Testator had capacity and the will should stand. However, in the face of more compelling evidence about the effects of the drugs a Testator was taking, a judge could well have decided differently.

If you have any concerns about the capacity of a Testator and the contents of his or her will, get in touch. We regularly help people who have been disappointed by a will and take legal action to challenge it.

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A cautious thumbs up for medical evidence in cases involving testamentary capacity and lack of knowledge and approval

Testamentary Capacity & Medical Evidence

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While medical evidence is an important factor in cases where the Testator’s capacity to make a will is disputed, there are other matters to be considered.

When a will appears to be manifestly unfair, leaving out a child for no apparent reason, it must raise questions about the state of mind of the Testator. This will inevitably lead to a look at available medical evidence, and potentially expert medical evidence based on GP or hospital notes made at the time the will was made. In Hawes v Burgess, the Court of Appeal considered the issue of medical evidence prepared for the court by an expert who had not examined the patient.

The facts in Hawes v Burgess

Mrs Burgess had 2 daughters and a son. Previous wills had treated her children equally. In 2007, Mrs Burgess created her final will which effectively disinherited her son Peter in favour of her daughters Libby and Julia. Mrs Burgess died in 2009, and had been suffering from vascular dementia at the time of her death. Peter and Libby challenged the will on the grounds that she did not have testamentary capacity and also that she did not have ‘knowledge and approval’. They relied on expert medical evidence prepared by a Professor Jacoby. He had not met Mrs Burgess. Julia relied on the fact that the solicitor who had prepared the will, Mr Webster, had followed ‘the golden rule’.

The judge at first instance upheld the challenge both on grounds of testamentary capacity and also on the grounds that Mrs Burgess lacked knowledge and approval. While the Court of Appeal upheld the decision on the grounds that there was a lack of knowledge and approval, they declined to uphold the decision on capacity.

The Court of Appeal found that

  • Mrs Burgess had been close to Peter up until the point of her death
  • Julia, the daughter who sought to rely on the 2007 Will had been instrumental in the making of it;
  • Peter and Julia had fallen out at the time the disputed Will was made; and
  • the solicitor, Mr Webster, had not send a draft Will to Mrs Burgess for her to check before executing the Will

Medical evidence after the event must be treated with care

In this case, the Court of Appeal was reluctant to find that there was a lack of capacity. The role of the experienced solicitor, Mr Webster, was crucial in this. He was independent, had taken instructions in person and had made attendance notes of the meeting. Even though Mr Webster was happy to accept that he had no medical training and had not seen Mrs Burgess alone when the will was drawn up, the Court of Appeal felt that his assessment of the deceased’s state of mind should not be overturned by medical evidence provided by someone who had not met the deceased. The situation might have been different had the solicitor been less experienced or been less careful in his or her notemaking; equally, if the medical evidence had been provided by someone who had treated or at least assessed the deceased at the time the will was made, this might have carried more weight.

Testamentary capacity and lack of knowledge and approval

As already mentioned, although the Court of Appeal declined to determine the case on the issue of testamentary capacity, the challenge to the 2007 will succeeded on the basis that there was a lack of knowledge and approval of the contents of the will. If there is evidence of testamentary capacity, knowledge and approval is likely to be presumed (although a will could be challenged on other grounds, for example that there has been undue influence).

However, if testamentary capacity is in doubt, or there are other suspicious circumstances surrounding the making of the will, a claim for knowledge and approval may be worth pursuing as it is then for the person seeking to rely on the will to show that the will does indeed reflect the intentions of the Testator.

If you have any questions about challenging a will, or if you benefit under a will which is being challenged, do get in touch to discuss your case!

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Do you think you are considering a suspicious will? Is there a question mark over some aspect of it?

How to spot a suspicious will

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You may already be worried about the circumstances in which a relative or loved one drew up a will – we looked at these in an earlier blog, Spotting Suspicious Behaviour Surrounding a Will . On the other hand, you may not have had any cause for concern until you have seen the will, after the Testator has died. If, at this point, you are disappointed by the contents of the will, the will itself may raise suspicions.

If you have suspicions about a will, it may be possible to bring a claim challenging a will on the grounds that the Testator lacked knowledge of the content of the will and/or did not approve the contents of the will. If you can raise suspicions, the burden of proof shifts to the person seeking to rely on the will to show that the Testator did know and approve the contents of the will. It’s therefore helpful to be aware of pointers in the will itself that can be indicative of suspicious circumstances.

Homemade Will

There is no need to involve a solicitor or legal expert in drafting a will, but the fact that no legal adviser has been involved may be suspicious taking in to account other factors.

Poorly written will

A will peppered with spelling mistakes, which is badly drafted, or uses language that would have confused the Testator could arouse suspicions

Inaccuracies

A will which is inaccurate or includes statements which would not be recognised as the sort of thing the Testator would say.

A radical departure from previous wills

If the disputed Will is not the first will of the Testator, and the contents are radically different from previous wills, this may well be suspicious without a sensible explanation for the change.

Inexplicable dispositions

If the person seeking to rely on the will was not otherwise close to the Testator – for example a cleaner or carer, this may be suspicious.

Lack of independence

If those who witnessed the will cannot be said to be ‘independent’, you may have cause for concern

If the will contains any of these elements, you may well see other events at the time the will was drawn up in a different light: Odd behaviours on the part of the testator or suspicious behaviour by the person who is seeking to rely on the will that perhaps meant nothing at the time.

While challenging a will is by no means straightforward, if you are concerned about the contents of a will and would like to explore the possibility of bringing a claim, get in touch with us.

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a stethoscope - how will medical evidence help you in a will dispute?

Medical Evidence in a Will Dispute

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Where someone is seeking to challenge a will, they may be looking to argue that the person who made the will (the Testator) did not have ‘capacity’ to do so. Another possibility is that they have been subject to ‘undue influence’ at the time they made the will. In all these circumstances, medical evidence may be important. In this blog, we look at the role of medical evidence in a will dispute.

The importance of medical evidence

When a will dispute arises, it is important to ascertain in as much detail as possible, what was going on for the Testator at the time they made their will. As the Testator is obviously unable to give evidence, those looking to either prove or disprove the validity of a will must look to other evidence.

Medical evidence – GP notes, hospital records, notes from other medical professionals involved in the Testator’s care at the time, and in the run up to the time, the will was made can offer an important insight into the extent of the Testator’s understanding of what was going on, and state of mind generally.

Medical evidence and testamentary capacity

If you are challenging a will on the grounds that the Testator did not have ‘testamentary capacity’, medical evidence to suggest the Testator was suffering from dementia or similar, will be helpful to your case.

To have testamentary capacity, the person making the will must

  • Understand the nature of making a will and the effect of doing so
  • Understand the extent of his property that his will covers
  • Understand claims that he should give effect to (those people – dependants – who should ordinarily be included in the will)
  • Not be suffering from any ‘disorder of the mind’ which has an impact on how his will is written

A Testator who appears confused or otherwise has been acting irrationally or out of character may be suffering from a ‘disorder of the mind’. It’s important to bear in mind that the solicitor preparing the will (if a solicitor is involved) should take care to follow ‘the golden rule’ which puts a responsibility on him or her to assess whether the Testator does indeed have testamentary capacity.

If you are concerned that the Testator did not have testamentary capacity, and the will leaves you disappointed to the extent that you are considering a challenge to the will, medical evidence will form an important part of your case. These will potentially be the best indication of your relative’s state of mind at the time they made the will.

Medical evidence and undue influence

Undue influence does not require a Testator to be unwell, either physically or mentally. However, a vulnerable Testator will potentially be more susceptible to the influence of an individual who sets his or her mind to doing so, with a view to manipulating the Testator in a particular way.

In these circumstances, medical evidence may point to the Testator being lonely, or in poor health which enabled the individual concerned to isolate the testator from family or friends and exercise control over them. It will be helpful to obtain GP notes and any hospital records as these may not only indicate the Testator’s situation but may make reference to particular individuals that seem to be playing a prominent part in the Testator’s life at the time.

Medical evidence may not be a complete answer

While medical evidence can be invaluable in establishing testamentary capacity, or in supporting a claim for undue influence, there are some situations where it will not be helpful. Medical notes are prepared with the patient’s treatment and ongoing health situation in mind, not in preparation for a will dispute. Any medical evidence put forward by an expert at the time of the will dispute will be based on those notes. A medical expert will not be able to examine and interview the patient in person – he or she can only apply his or her expert knowledge to what is included in the notes.

As a result, it is very likely that the medical evidence will only offer part of the picture and it will be important to gather other information in relation to the Testator – particularly in an undue influence case.

When you contact a solicitor who specialises in will disputes, they will advise you on the types of evidence that will be helpful in your particular case. We offer a free initial claim assessment to help you understand the strengths (and weaknesses) of your will dispute claim, and what you will need in terms of evidence (medical and otherwise) to support your claim.

If you’re thinking of disputing a will – get in touch!

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Whether you use a vintage fountain pen or note, a larke v Nugus statement will be useful evidence in a will dispute

Evidence to challenge a will: a Larke v Nugus Statement

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The evidence needed to challenge a will successfully can be difficult to obtain – not least because by definition, the person who made the will is deceased. However, if a solicitor was involved in drawing up the will that you now intend to challenge, their evidence may be important. If a solicitor did draw up the will you think is invalid, obtaining a ‘Larke v Nugus’ statement will be part of the evidence gathering process.

What is a Larke v Nugus statement?

A ‘Larke v Nugus statement’ refers to evidence from a solicitor involved in drawing up a will. The statement should contain information from the solicitor relating to all the circumstances, as far as he or she is aware of them, surrounding the will. The person seeking to challenge the will, and their legal team, will find this helpful in assessing the strength of the validity claim.

Why is it called a Larke v Nugus statement?

Like many aspects of the law, the rules surrounding the procedure for disputing a will derive from case law – the decisions of the courts in earlier cases. This is so for the Larke v Nugus statement. In 1959, the Law Society issued a practice direction covering the situation in which a solicitor who had prepared a will could give details relating to those events. This was confirmed in Larke v Nugus. Essentially, there had been a question mark over whether the circumstances surrounding the drawing up of a will was protected by client confidentiality. In Larke v Nugus the Court of Appeal confirmed that in cases of a will dispute, the solicitor who had drawn up the will would be a material witness and should therefore provide evidence about

  • the circumstances in which the testator gave instructions for the will; and
  • the circumstances in which the will was executed

What should a Larke v Nugus statement contain?

According to the Law Society’s Practice Direction, a Larke v Nugus statement should contain

“ a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties”.

In practical terms, this can include

  • how long the solicitor in question knew and/or acted for the Testator
  • Who introduced the solicitor to the Testator
  • When the instructions to make the will were received
  • How the instructions were communicated (in person, by phone, by letter)
  • Observations the solicitor made about the Testator’s knowledge of what he or she was doing (making a will), and whether the Testator was otherwise confused or stressed or behaving out of character
  • Whether there was any discussion about previous wills; where the new (disputed) will was significantly different from previous wills, any discussion around the reasons for this
  • Any explanations that were given as to the provisions of the will and what they would mean
  • A description of the execution of the will – in terms of who was present and what happened.

In addition to the information disclosed in the Larke v Nugus statement, it is usually appropriate to request a copy of the ‘will file’ held by the solicitor concerned, which will contain documents such as attendance notes, any drafts, and other information – for example details of how the solicitor reassured him/her self that the client had testamentary capcity – if this is an issue.

Ultimately, obtaining a Larke v Nugus statement is about attempting to resolve a matter without going to court. In the absence of any other clear evidence, the solicitor’s evidence, both in the statement and from the will file, may well prove the will is valid, (or, equally, cast sufficient doubt on its validity). Either way, you will have a clearer idea of the strength of your case and may offer more scope to resolve the matter through dispute resolution.

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A country cottage may not have been left to you but you may still be able to claim maintenance from a loved one's estate

Maintained by the deceased – Inheritance Act claims

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The Inheritance (Provision for Family and Dependants) Act 1975 allows claims for ‘maintenance’ from a deceased’s estate by “a person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased” (Section 1(1)(e)). In the case of Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary [2015] EWCA Civ 581, the Court of Appeal had to review the situation where the person claiming ‘maintenance’ had also been providing ‘services’ to the deceased immediately prior to the death.

The Facts

This case also concerned the question of the conditions necessary for a deathbed gift. We have set out the facts in an earlier blog which is available to read on our website. The relevant points for this blog are that Mr King went to live with his aunt in 2007. The arrangement suited them both –he had a place to live and ‘subsistence’ from his aunt; she had someone to care for him as she became older and frailer. On the aunt’s death, Mr King claimed that she had made a deathbed gift of her house to him. Alternatively, that if she had not made such a gift, he claimed that he fell within section 1(1)(e) of the Inheritance Act 1975 and had been maintained by his aunt before her death.

The judge at first instance agreed that there was a deathbed gift. However, he went on to rule that if he was wrong on that point, Mr King had been ‘maintained’ by his aunt and should receive £75,000 from the estate. The charities appealed on both counts, not only challenging the deathbed gift, but also arguing that the maintenance award was excessive. Mr King also appealed the maintenance award, arguing that he should receive more than £75,000.

The Court of Appeal disagreed with the judge at first instance and held that there was not a valid deathbed gift of the aunt’s house to Mr King. Accordingly, the appeal by the charities, succeeded on this point. However, the Court of Appeal rejected both appeals on the question of maintenance holding that the assessment by the judge at first instance was correct.

  • The judge recognised that the relationship between Mr King and his aunt was mutually beneficial, so he had to look at the balance of that relationship.
  • He found that Mr King was a dependant of his aunt. The valid will (pre-dating the purported deathbed gift) had made no provision for him, so he was entitled to maintenance under the Inheritance Act 1975.
  • The assessment by the judge of the amount of maintenance should stand

Assessing dependency when each is providing the other services or money’s worth

Given that the aunt was providing Mr King board and lodging and essentially supporting him in return for Mr King being her ‘carer’, the court had to assess whether there was a dependence by Mr King on the aunt. The leading case is Jelley Iliffe [1981] Fam 128. The court must look at the benefit on each side, and whether one person benefited more from the arrangement than the other. The Court of Appeal in Jelley recognised that this was a careful exercise to carry out, and would be a question of evaluating the facts in each case. In this case, the judge at first instance found that Mr King had more benefit from the arrangement than his aunt did, and that he was dependant on her: the provision by the aunt of board and lodgings for her nephew for 4 years amounted to ‘maintenance’. The judge also recognised that the attempts by the aunt to execute a will leaving her property to the nephew amounted to recognition by her of a responsibility towards her nephew.

If you have been supported by a relative or close friend immediately before their death, and their will leaves nothing to you,  we can talk you through the logistics and practicalities of bringing a claim under the Inheritance Act. We offer a free claims assessment service, and can usually handle cases on a no win no fee basis.

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making a gift on your deathbed is not as straightforward as it might seem

Challenging Deathbed Gifts

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The deathbed gift – known as donatio mortis causa (or ‘a gift given in anticipation of death’) is an aspect of English Law that comes directly from our Roman legal heritage. It covers the situation where someone (the Donor) makes a gift ‘on their deathbed’ – of money or of property – to take effect only on their death. As the courts have recognised,  deathbed gifts are open to abuse by the unscrupulous – so what are the conditions for a deathbed gift – and how easy (or difficult) are they to challenge?

Examples of a valid deathbed gift

True deathbed gifts manage to avoid the protections afforded by the Wills Act 1837 and the Law of Property Act 1925. They effectively allow someone to pass over ownership of money or property, including land, without the usual formalities.

Deeds relating to X farm to be given up at death

The sisters who were given this envelope, marked as such by their uncle, owned a farm. The farm had been mortgaged to the uncle as security for a loan of £1,000. The uncle knew he was dying and handed over the envelope 6 weeks before he died. Although the uncle’s executors sought to enforce the mortgage, the court in this case, Wilkes v Allington [1931] 2 Ch 104 found that the gift was valid.

The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box

In Sen v Headley [1991] Ch 425 the courts considered a deathbed gift of ‘real property’ (the house referred to above). In addition to these words spoken by the Donor, who was in hospital and near death, it transpired that he had, in fact, put the only key to the steel box referred to in Margaret’s bag. This was a valid deathbed gift.

Although it seems clear in these cases that the Donors intended to make the gifts, and these were upheld by the courts, the courts have made it clear that in cases of ‘deathbed gifts’ they will be very careful to scrutinise the facts to make sure there has been no abuse.

Deathbed gifts – the current position

To be a valid deathbed gift, several conditions must be satisfied:

  • The Donor must be contemplating his ‘impending’ death (not death in general – in which case he or she should be thinking about making a proper will) for a specific reason. This could be a disease which has been diagnosed and for which the prognosis has been given. Death does not have to be an inevitable outcome – a ‘deathbed gift’ made in advance of an operation was held to be valid in Re Craven’s Estate [1937] 1 Ch 423.
  • The gift is dependant on the Donor dying for the anticipated reason – before the Donor’s death, he or she can take the gift back – and if the Donor does not die as anticipated, the gift does not take effect
  • The Donor ‘delivers dominion’ over the gift – such as the handing over of documents, as in the Wilkes case, or a key, as in Sen v Headley, but can be tricky to establish.

It is also true to say that the Donor should have ‘mental capacity’ to make the gift, although this has not been incorporated into the list of conditions for a donatio mortis causa/deathbed gift.

Challenging a deathbed gift

The circumstances in which a deathbed gift might be challenged are varied. Depending on the nature of the gift, a valid deathbed gift can reduce the Donor’s estate significantly – even reducing to nothing the value of property to pass under a will or the laws of intestacy. The grounds on which someone might challenge a deathbed gift could include the following:

  • The Donor was not contemplating his ‘impending death’ for a specific reason when he made the gift

Case law suggests that a gift made by an elderly Donor who is not suffering any specific illness or disease or has no definitive prognosis in relation to life expectancy would not be made in contemplation of death for these purposes. In Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary [2015] EWCA Civ 581 although elderly, the donor was not ill or about to undergo an operation or dangerous journey. She had not visited the doctor for some time. The Court of Appeal found that in those circumstances, she could not have been contemplating her impending death for a specific reason, only death ‘in general’

  • The Donor was trying to make a will rather than a gift that would fall outside the will

As mentioned, because a deathbed gift falls outside the protections of the Wills Act, the courts must be satisfied that the Donor was intending to make a gift, rather than creating a will. Although there are very specific circumstances in which an oral will is permitted, for the most part, a will must be executed in accordance with the formalities under the Wills Act. Again, in Kenneth Paul King, the conversations that the claimant relied upon were considered by the Court of Appeal to reflect ‘testamentary intent’ rather than the making of a deathbed gift. As such the donor could have contacted her solicitors to make a new will.

Although there is a line of case law which upholds the principle of donatio mortis causa – the deathbed gift – it seems clear that the circumstances in which this will continue to be the case are quite limited. The judgment in Kenneth Paul King seems to have introduced an added rigour to the approach to be applied in these cases, and we anticipate that it will be harder to rely on a ‘deathbed gift’ in future.

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if, in the sunset of your life, you try to make a deathbed gift, it may be challenged

The strict approach to the deathbed gift

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‘Deathbed gifts’ are one of the limited exceptions to the general principle that on death, the property of the deceased should be disposed of according to either a written will, or the rules on intestacy.

The courts have long recognised that the concept of the ‘deathbed gift’ is open to abuse. The case of Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary illustrates the strict approach that the courts will take in circumstances in which someone seeks to rely on the concept of ‘donatio mortis causa’ – the deathbed gift.

The Facts

Mr King, the claimant in this case, was the nephew of June Fairbrother. Divorced with no children, June had been a police officer, and was an animal lover. In retirement, she helped and supported a number of animal charities. Her family were aware of her intention to leave her property, including a home she owned, to animal charities on her death. This intention was set out in a will drawn up in 1998 which left modest legacies to friends and relatives. Her will left the bulk of the estate to 7 animal charities. The claimant had been bankrupt and had a conviction for acting as a director while disqualified. In 2007, he went to live with June in an agreement which suited both parties. He would have a home and she would have someone to care for her as she became older.

According to the claimant, June had, on a number of occasions explained that she wanted him to have the house on her death and on 19th November 2010, she wrote a note to this effect, on the basis that he would care for her animals after her death. She gave the deeds of the property to the claimant, saying “…this will be yours when I go…”. In February and March 2011, further documents were drawn up to this effect, including a purported ‘will’ which was signed by June but not witnessed, leaving the house to the claimant.

June died in April 2011. Contrary to her wishes, the claimant sent her dogs to a dogs home. None of the documents drawn up by June prior to her death amounted to a valid will, so the 1998 will stood. The claimant sought a declaration that June had made a deathbed gift – a donatio mortis causa leaving the house to him.

Although the judge at first instance ‘had not found it easy’ to accept the Claimant’s evidence, in view of the circumstances and the Claimant’s background, he did make the declaration of the gift. The Court of Appeal overturned the decision.

  • The Court of Appeal recognised that the Claimant’s background gave serious cause to question the evidence he gave of the circumstances surrounding the ‘gift’, but was reluctant to overturn the findings of fact made by the judge at first instance;
  • In any event, this did not matter, because the requirements for a donatio mortis causa/deathbed gift had not been fulfilled – June had not made the gift in contemplation of her impending death; in addition, the words she had used appeared to be more like a statement of testamentary intent. Her actions in attempting to draw up a will to leave the property to the claimant suggested that she had not intended to make a gift of the property.
  • Although the claimant failed to obtain a declaration that he should have the house as a ‘deathbed gift’, he was entitled to receive maintenance under the Inheritance Act 1975 as a person who had been maintained by the deceased immediately prior to her death.

 ‘In contemplation of death’

The Court of Appeal was clear that for a death bed gift to succeed, the donor (in this case, June) must make the gift in circumstances where he or she is clearly contemplating death in the near future for a specific reason. The court looked carefully at the case law, highlighting that those cases where a deathbed gift succeeded involved donors who were either diagnosed with a specific condition and were aware that they were likely to die from that condition in the near future, or facing a potentially life threatening set of circumstances such as an operation. Interestingly, the Court of Appeal specifically held that the case of Vallee v Birchwood [2013] EWHC 1449 (Ch); [2014] Ch 271 had been wrongly decided on this point. In that case, although the donor anticipated his death within the following 5 months from when the gift was made (and did in fact die in that period), there was no real reason for him to think that he was actually going to die – he was simply elderly.

A gift rather than testamentary intent

The gift in this case also failed because the Court of Appeal did not believe it was genuinely a gift. The language used (as reported by the claimant in his evidence) and the actions of June in seeking to document her wishes suggested that she was trying to draw up a new will to leave the property to the nephew, rather than making a gift. Although the first and second conditions of a donatio mortis causa were not satisfied in this case, ironically, in handing over the title deeds to the claimant, June did fulfil the 3rd condition, namely handing over ‘dominion’ to him.

The case raises an interesting question about maintenance under the Inheritance Act 1975 which we will look at in another blog. On the question of deathbed gifts, the decision of the Court of Appeal indicates the strict approach the courts will take. The concept of donatio mortis causa is something of an anomaly, open to abuse because it removes the protections that the Wills Act and the Law of Property Act offer in relation to the disposal of property. Anyone seeking to rely on a deathbed gift in future will have to have clear evidence supporting all 3 conditions of a donatio mortis causa to succeed.

 

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A fountain pen to sign and execute a will

Executing a will – what not to do!

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As specialists handling will dispute and contentious probate claims, we have a lot of experience of dealing with the mistakes that were made when a will was drawn up. One of the grounds for challenging the validity of a will is that it was not properly executed – and if this is the case, and the will is overturned, people who were genuinely intended to benefit from a will may find themselves left with nothing. Bearing this in mind, here are some tips to make sure your will is validly executed.

What is ‘executing a will’?

‘Executing’ a will means that it has been drawn up, signed and witnessed in accordance with the relevant law. In England and Wales, this means that the will conforms with the Wills Act 1837, section 9. To do so:

  • the will must be in writing and signed by the Testator or by someone else, but in the presence of the Testator and at the Testator’s ‘direction’;
  • it must appear that the Testator intended to give effect to the will in signing it;
  • the signature must be made (or, if someone else is signing acknowledged) by the Testator in the presence of at least 2 witnesses
  • each witness must either attest and sign the will; or acknowledge his signature in the presence of the Testator

What this comes down to is that the will must be signed by or on behalf of the Testator in front of 2 witnesses, who then usually will sign the will in front of each other.

A will signed on behalf of the Testator 

As mentioned above, a Testator may direct someone else to sign the will on his or her behalf. This often happens in the case of ‘deathbed’ wills when a testator makes a will (or a new will) in the latter stages of life and is unable to sign for him or herself. However, it’s not enough for the Testator to be passive in allowing someone else to sign the will.

In Barrett v Bem [2011] EWHC 1247 Ch, the Court of Appeal found that there was not enough evidence to show that the testator had made a “positive and discernible communication” that he wanted his will to be signed on his behalf. The Testator, Martin, had made a will on his deathbed, leaving his estate to his sister, Ann. The will was challenged by those who would inherit under the intestacy rules. At first instance, it became clear that Ann had signed the will on Martin’s behalf, even though she was to benefit under the will. The judge found that there was no evidence that Martin had directed Ann to sign – but that he must have allowed her to sign on his behalf.

The Court of Appeal overturned the decision. They held that passivity on the part of the Testator would not be enough to satisfy section 9 of the Wills Act when it came to someone signing a will on behalf of the Testator and at their direction. There needed to be a positive action by the Testator.

Mistakes may be undone by the courts

If a genuine error does occur in executing a will, the courts may be able to rectify that error. Following a long running legal saga, the Supreme Court ruled that where there is a genuine clerical error, the courts may be able to put it right. In that case – Marley v Rawlings [2014] UKSC 2 a couple, Mr and Mrs Rawlings had created ‘mirror wills’ leaving everything to each other on the ‘first death’, and then to Mr Marley on the second death. The solicitors concerned did not notice that the couple had signed the wrong wills (Mr Rawlings had signed Mrs Rawlings’ will and vice versa). The Court of Appeal agreed that it was entirely clear this was a genuine mistake on the part of all concerned, but could not be undone by any “smoke and mirrors” on the part of the court. However, the Supreme Court declared that Mr Rawlings’ will should be rectified and given effect as if he had signed the correct will.

Despite Marley v Rawlings, you should not assume that the courts will rectify mistakes. Taking care to execute your will correctly is a vital aspect of making your will and will avoid significant problems later on for your family and intended beneficiaries!

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The Royal Courts of Justice

How easy is it to contest a will successfully?

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If you’re considering legal action to contest a will, the chances are you will be trying to work out which firm of solicitors to use to represent you. And no doubt, one of the big questions you want answered is how easy is it to contest a will – and win? It’s a worthwhile question to ask. Legal action of any kind can be stressful and exhausting; it can also be expensive. Legal action to contest a will is no different – so just how easy is it to successfully contest a will?

‘Unfairness’ doesn’t come into it

If it were possible to overturn a will simply by showing that it was ‘unfair’, then the answer to the question “How easy is it to contest a will successfully?” would be “Very easy”. Many people feel that they have been treated unfairly or unjustly by a loved one in a will – but this is not sufficient to contest the will successfully. As the Supreme Court has recently confirmed in the case of Ilott v Blue Cross, English law upholds the principle of ‘testamentary freedom’ meaning that people are free to leave their property as they wish, however unfair the result of that may be.

Leaving aside ‘unfairness’ as the grounds for contesting a will, you must therefore decide whether the challenge is based on an argument that the will is invalid (and so an earlier will, or the intestacy rules apply), or that the will itself is valid, but you should have received ‘a bigger share’ or the estate.

Evidence to contest a will

As with any legal dispute, the strength of your claim in respect of a will depends on the evidence. You must prove that the will is invalid for a legally acceptable reason – for example because the person making the will, the Testator, did not have the capacity to make the will, or because he or she had been subjected to undue influence. And here is one of the first difficulties in overturning a will: there is often very little evidence to show that anything untoward has happened. If there is evidence, it is often very old – and the person who would be in the best position to explain the will – the Testator – is no longer around to explain.

Evidence such as medical records are important if you are claiming that the Testator did not have testamentary capacity to make the will; but medical notes are prepared in relation to medical treatment, and not with a view to future legal action. It’s often the case that medical records don’t provide a complete answer for the purposes of a will dispute.

If you feel that undue influence has been brought to bear on your relation resulting in the will being drawn up in a particular way, it can be even more difficult to contest the will. There is unlikely to be any concrete evidence, and for a claim to succeed, the court must be satisfied that the will could only have been created in such a way as the result of undue influence.

Alternatively, if you are not challenging the validity of the will but the way an estate has been shared out, in a claim under the Inheritance Act, you must show that you have a financial need and depending on the nature of your claim that you were in some way dependent upon the Testator, that he owed you a legal obligation as his spouse or alternatively that even though you are his adult child, he owed you a special moral obligation (for instance because of your ill health, dependency or where there is a situation of historical abuse).

A question of cost

Even assuming there is sufficient evidence to contest a will, you must also consider the costs that a legal action will incur. We offer a ‘no win no fee’ service in almost all will dispute actions that we handle for clients – this limits your liability if your case gets as far as the courts and you do not win your case; if you do win, you will need to pay the legal costs. The losing party may be ordered to pay these, but it may be that the costs all but wipe out the financial value of your victory.

We very much favour using dispute resolution – mediation for example – as a means of resolving will disputes without going to court. Mediation is a quicker, less costly way to resolve a will dispute, and can often result in an outcome which is more suitable than an order of the court. There may still be costs to pay.

You should also consider the emotional cost of challenging a will. Legal action can be all consuming, especially in such a highly-charged scenario as a will dispute. Even if, on the facts, and with the evidence you have, the case is likely to be successful, you may still find the emotional cost of the action is high.

Take a realistic view

You may think it surprising that as will dispute specialists, we are setting out some of the difficulties that people face when they are looking to contest a will. Of course, each case is different, and we look at each case individually. However, we believe that it is best to have all the facts out in the open at the start – or even before the start – so you know what you are facing. It can be an uphill battle to prove that a will is invalid, or that the estate should be divided up differently, and even in winning, you may not end up in any better position.

On the other hand, we take care to advise our clients and prospective clients honestly as to the strength of their claim, and the likelihood of success. As a result, we succeed in most of the claims that we take on.

If you’d like to talk more about the will dispute you are considering, we’d be glad to listen. We offer a free claim assessment, so get in touch!

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sometimes you get the feeling that someone is acting suspiciously in relation to a will

Spotting suspicious behaviour surrounding a will

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We’ve been handling will disputes for many years, and have found that there are a number of common themes which raise suspicions that all is not as it should be with the will concerned.

Challenging a will is a big decision to take, especially in the sad circumstances where a loved one has died. You may also be unsure if you are right to be taking this step – you may ‘feel’ that things are not right in relation to the will of your loved one, but be struggling to pinpoint why this is the case. Suspicious behaviour before, as well as after, the death can often be identified and should be a cause for concern, even though no action can be taken to dispute a will until after the Testator has died.

We’ve brought together a list of the matters that our clients commonly raise when they speak to us, which usually indicate that the circumstances surrounding the making of the will are suspicious and warrant further investigation relating to the validity of the will.

Before death

Unlikely friendships Of course, everyone is free to build relationships with anyone they choose, but in some cases, a relationship develops which is out of character for your loved one. It is not uncommon in this context for your loved one to start to display behaviour towards you which is less affectionate, or even overtly suspicious or hostile.

A drop in communication If your loved one has become confused as the result of illness such as dementia, or simply been manipulated by someone else into making a will which excludes close family, the person responsible (perhaps a new carer or partner) may make deliberate attempts to take over all communications on behalf of your loved one, and limit your access to him or her. You may not be aware that this is what is going on in the background, but if you notice a change in how your loved one communicates with you – or in how often you are invited or allowed to visit, there may well be something untoward going on.

Reliance on a particular person If your loved one is already vulnerable, perhaps suffering from memory problems or other mental health problems, or a long term physical condition, they are more open to being manipulated. We have come across situations where people have taken advantage of this by allowing the loved one things that they have been advised not to have – or do (such as drinking alcohol or driving). Equally, where someone is vulnerable in these circumstances, an unscrupulous individual will exploit this by planting unfounded suspicions about family members who would otherwise be included in the will into the mind of the will writer. Again, it is hard to know that this is happening, but if your loved one is increasingly favouring one person over everyone else, and their behaviour towards others changes and becomes more hostile, this may well be what is going on.

Change in professional advisors If your loved one suddenly changes solicitor or GP in the run up to writing a new will, this can indicate that something untoward is going on. If someone is seeking to manipulate your loved one into writing a will in particular way, they will want to avoid the involvement of professionals that may challenge what is going on.

After Death

Lack of communication Sadly, if there has been manipulation, undue influence, involved in your loved one’s will, you may well not find out straight away that they have died. When someone has become close to a testator with a view to influencing their will, they will want to prevent the family (or the rest of the family, if a family member is involved) knowing that the individual has died.

Hi-jacked funeral Just as distressing as being late to find out that your loved one has died, we have noticed that when a testator has made a will in suspicious circumstances, the person or people responsible for manipulating the testator may also try to take over the funeral, dismissing the views and feelings of the family, and focussing on the importance of ‘friends’.

Concealing the will If a new will has been made that disinherits family in suspicious circumstances, those responsible (whether an individual or small group of people) may often conceal the existence of the will, and accuse genuine enquirers of only being interested in the money. Alternatively, they may deny all knowledge of the will, even when it becomes clear that they have played a role in the creation of the new will. You may also find that a solicitor refuses to disclose a will on the grounds that it is “confidential to the deceased” – spurious because once probate is granted, a will becomes a public document! More likely is that this is a ruse to prevent close relatives from realising what has happened, and entering a caveat to prevent the grant of probate.

Swift action to apply for probate While it is normal to apply for probate relatively quickly after someone has died, in some cases, we find that the application for the grant of probate has been pre-prepared in advance of the death, which means that probate can be applied for immediately in an attempt to prevent the will being challenged.

You may feel uncomfortable raising concerns about the circumstances in which a will has been made – for fear of being accused of ‘only being interested in the money’. However, it’s also the case that if your loved one has been manipulated by someone into making a will that doesn’t reflect their true wishes, that person will say this sort of thing to try and stop you making further investigations.

If you have concerns about a will that you would like to discuss, why not talk to us? We offer a free claim assessment , and can handle most cases on a no win no fee basis, if you decide to take things further.

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Keeping your will up to date is important to make sure it reflects your personal circumstances at the time

Martin v Williams – when a will hasn’t been updated

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The High Court has recently considered a claim under the Inheritance Act 1975 in circumstances where the will left everything to the Testator’s wife, from whom he had been separated for many years, and nothing to his long term partner. We look at Martin v Williams [2017] EHWC 491 (Ch) .

The Facts

At the time of his death in 2012, Mr Martin had been separated from his wife, Maureen Martin, for many years, although they had never divorced. He had been cohabiting with Joy Williams for 18 years, but had not updated his will to reflect his changed circumstances. The will left everything to his wife, Maureen Martin, including Mr Martin’s share of the home he owned with Ms Williams as Tenants in Common.

Perhaps not surprisingly, Ms Williams brought a claim under the Inheritance Act (Provision for Family and Dependants) Act 1975, essentially seeking an order granting her Mr Martin’s share of the property they shared. The Judge in the Central London County Court found in her favour. He agreed that she was living in the same household as Mr Martin as his wife and had been for 2 years before his death, and was entitled to apply for maintenance under the Inheritance Act. He found that the will did not make reasonable provision for her, and granted her Mr Martin’s beneficial interest in their home.

Mrs Martin challenged this in the High Court, and succeeded on 3 of the 6 grounds of her appeal.

  • The judge in the County Court had made errors in his assessments of the financial positions of the parties – he should have considered the fact that Ms Williams had an interest in another property; he had also overstated the position of Mrs Martin without good reason.
  • The judge had also incorrectly applied the provisions of the Inheritance Act 1975 by failing to apply the statutory test in determining what reasonable financial provision for Ms Williams would be; by conducting a ‘needs based’ assessment with respect Mrs Martin; and not considering whether Mr Martin’s limited estate was sufficient to satisfy the interests of both Mrs Martin and Ms Williams.
  • Taking this into consideration, while the High Court judge agreed that Ms Williams had not been given ‘reasonable financial provision’, he held that granting the beneficial interest in the property to Ms Williams was excessive. The correct position was to grant Ms Williams a life interest in the 50% share of the shared property – so she could continue to live there while she was alive, reverting back to Mrs Martin on her death.

Considerations of financial resources and the needs of ALL involved

The High Court found that the judge in the County Court had wrongly disregarded Ms Williams’ interest in a second property. He had done so because Ms Williams’ sister lived in the property and he felt that Ms Williams could not be expected to evict his sister to raise money. The High Court was also critical of the judge’s approach to Mrs Martin – he did not challenge her evidence, but then did not accept her evidence in looking at her financial needs and resources – as another beneficiary under the will. The case highlights the importance of the court balancing the competing interests that come in to play when a claim is brought under the Inheritance Act – something the Supreme Court touched on in the recent case of Ilott v Blue Cross and others.

The Importance of Updating your Will

If nothing else, this case highlights of the importance of making sure you keep your will up to date. There was no evidence that Mr Martin intended to leave Ms Williams out of his will, or have his share of their home in the event of his death. However, by failing to update his will when he and Mrs Martin separated, and again when he and Ms Williams purchased a property together, this was the result – along with the attendant stress and costs of legal action.

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Know the golden rule in relation to testamentary capacity to avoid your will being challenged

Testamentary capacity and the Golden Rule

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We look at ‘the golden rule’ in relation to will disputes – what it is, and why it is important

If you are worried that a close relative was unwell when they made their will, and did not really know or understand what they were doing, you may be considering challenging the will on the grounds of ‘testamentary capacity’. If this is the case, you will need to take a few steps back and find evidence relating to what was going on when your relative made his or her will. Not only will medical evidence be important, and perhaps anecdotal evidence from other relatives and friends, but you will need to establish whether the solicitor who drew up the will followed ‘the golden rule’.

What is ‘testamentary capacity’?

Testamentary capacity is a legal phrase which relates to the knowledge and understanding the person who makes a will, the Testator, has at the time they make the will. The question of testamentary capacity was considered by the courts in Banks v Goodfellow [1869 -70] LR 5 QB 549. A Testator must:

  • Know and understand the nature of the will and its effect – it doesn’t mean and understanding of the legal terminology that might be used, but a broad understanding of what a will is and what it does; and how it will divide up property on his or her death.
  • Have an understanding of the assets they own – property and other assets such as savings and financial investments – although they do not need to be able to itemise every single thing they own!
  • Understand that there are people he or she might normally be expected to provide for in a will – dependent children for example – and not be affected by some condition such as dementia, that might stop him from providing for those people.

If all these conditions are met, then the Testator can be said to have testamentary capacity – and the fact that he or she did not provide for someone cannot be challenged on this basis.

What is the Golden Rule?

The ‘Golden Rule’ places a requirement on a solicitor or will writer to assess whether the Testator has testamentary capacity – and if necessary to obtain medical evidence to support this. The idea of the golden rule was explained in a case in the 1970s called Kenward v Adams ChD 29 November 1975, but which was also followed in Re Simpson [1977] 121 SJ 224, when the court held that “… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”

It may be uncomfortable to suggest to an elderly client – or even a client who is not elderly, but who perhaps displays some erratic behaviour – that they should have their state of mind assessed and recorded by a doctor, but if you’re a solicitor preparing a will, it’s an important step to take. In a will dispute where testamentary capacity is in issue, and the golden rule has not been followed, the will may well be overturned, although it is not a ground for overturning the Will on its own account.

What can you do?

If you are looking to challenge a will on the grounds that the Testator did not have testamentary capacity, you will need to obtain as much evidence as possible about his or her mental state at the time the will was drawn up. This can include letters or other communications from the Testator at the time, medical records, and statements from people who knew the Testator. If we are instructed to challenge a will, we will also seek the files from the solicitor involved in drawing up the will, to see if they followed the Golden Rule at the time.

To discuss how the Golden Rule might have a bearing on the will dispute you are considering bringing, get in touch.

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The Supreme Court has upheld the principle of testamentary freedom and so if someone wishes to leave their estate to charity, such as in the case of Ilott v Mitson, adult children will find it hard to succeed under the Inheritance Act 1975

Gifts to charity – can they be challenged?

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It’s not often that legal disputes over the contents of a will make the front pages – but a long running saga that has recently been concluded in the Supreme Court relating to gifts made to charity in a will at the expense of surviving children, has done just that.

Challenging a will under the Inheritance Act 1975

As we’ve mentioned before, under the Inheritance (Provision for Family and Dependants) Act 1975, there are certain circumstances in which you can challenge a will in order to obtain a payment from the deceased’s estate – or an increase in the legacy you have been bequeathed. You must have been married to (or have been a partner) of the deceased, a child of the deceased, or dependant on him (or her) and you must prove that you have a reasonable need for financial provision for the court to agree.

The facts in Ilott v Blue Cross and others

The long running case of Ilott v Blue Cross and others, which has recently been concluded in the Supreme Court, looked specifically at the Inheritance Act 1975. It started life as Ilott v Mitson. Heather Ilott had been passed over in her mother’s will in favour of some animal charities, following an estrangement which had occurred many years previously. These fairly straightforward facts have led to a fairly tortuous legal saga, which you can read about here.

At the point where the Supreme Court heard the case, back in December 2016, the Court of Appeal had found in Ms Ilott’s favour a second time and awarded her £143,000 to purchase her house, plus £20,000. The charities appealed.

The Supreme Court Decision

The Supreme Court agreed with the charities, so the original decision now stands and Ms Ilott receives £50,000.  The real importance of the case comes from the guidance the Supreme Court gave in this, the first case where it has dealt with the provisions of the Inheritance Act.

  • It was clear that the mother had not wanted her daughter to benefit from the estate, and the Court of Appeal should have taken this in to account
  • The long estrangement had not been given enough weight by the Court of Appeal – although awards under the Inheritance Act are not designed to punish bad behaviour by a Claimant (or reward good behaviour).
  • Any award under the Inheritance Act 1975 impacts on the bequests to other beneficiaries. In the case of charities, many are reliant on legacies that they receive.
  • ‘Maintenance’ isn’t limited to subsistence level – what a Claimant might need to survive – and does not mean simply providing whatever the Claimant says they need.
  • Maintenance should be the provision of income rather than capital, but the Courts should look at the most appropriate way to provide that, for example in a lump sum which could generate both income and capital.
  • Unless the Claimant is the spouse of the deceased, they will probably need to show a moral claim on the estate, as well as the need for maintenance.
  • The Court has to consider (with evidence) what effect a judgment will have on state benefits, as these are a ‘resource’ available to a Claimant.

Inheritance Act claims in the future

The decision of the Supreme Court doesn’t mean that dependants can no longer claim ‘maintenance’ under the Inheritance Act 1975 – after all, Ms Mitson was granted £50,000. However, successful claims may be harder to prove. The decision of the Supreme Court confirms the importance of the principle of testamentary freedom – the right of an individual to dispose of their property in a will how they choose. As a result, an adult child living independently of the testator will find it much harder to succeed in claiming maintenance if the parent has chosen to disinherit them.

This case is also a valuable lesson in the length of time such disputes can take to resolve if dispute resolution is not used – or is unsuccessful. Ms Ilott brought her original claim in 2007 – so it has taken the best part of 10 years to resolve, not to mention the stress that will have been involved, and the uncertainty. Equally, and perhaps of more concern, we can only imagine the legal costs that will have been involved. If you are thinking of contesting a will, it’s worth considering the possibility of alternative dispute resolution, such as mediation.

If you have been disappointed by the contents of will, get in touch – we can talk through your options, and advise on the next steps should you wish to take the matter further.

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A barrister's wig

Why do I need a barrister to advise on my will dispute?

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Once you’ve engaged a solicitor to represent you in a will dispute, you may be surprised when he or she recommends using a barrister. It won’t always be necessary to use a barrister, but there are plenty of situations that arise when challenging a will (or defending a challenge to a will), when a barrister will provide vital advice both on legal matters and on strategy. In this blog we look at the role of a barrister in more detail, and what they bring to a will dispute, talking to Amy Berry , a barrister specialising in inheritance, wills and probate issues, from Pump Court Chambers.

Expertise

You will have chosen your solicitor on the basis that they are expert in this field. A barrister can add a further layer of expertise, particularly when considering negotiation strategy, or a forthcoming court hearing. As Amy explains,

As specialists in contentious probate, dealing with these issues on a day to day basis and in a variety of different situations, a barrister is in the best position to assess a will dispute objectively, to look for any weaknesses in an argument and to cross check the facts

Independence and Objectivity

As solicitors specialising in contentious probate, we will be involved in the day to day conduct of your case – preparing documents, gathering evidence, writing letters and dealing with the procedure of putting your case together and making sure matters such as deadlines are respected. A barrister will take a step back, and view the matter in the round. Amy continues:

It’s fundamental to understand that barristers are independent. Barristers are usually self-employed, and will be brought in to a will dispute by a solicitor to provide objective and practical advice both on the strength of the case you are bringing or defending, and also in relation to the procedure and strategy that should be followed for the best outcome.

Barristers are also independent of each other – even if we are in the same ‘chambers’. We are governed by strict rules of conduct which means that if there is any question of a conflict of interest, we will not be able to be involved. This can be confusing for people who aren’t used to the way barristers work. You may find that barristers acting for both Claimant and Defendant in a will dispute are from the same chambers – but this does not mean that there is a conflict. Even more often you have a mediator from the same set as a barrister representing a party in the mediation. There is no conflict in such situations and no reason to be alarmed. There will only be a conflict if those barristers have discussed one side of the case between themselves and after that one takes the brief for the other side with knowledge that they would not have but for those discussions – and the rules of conduct and our independence means that this should not happen.

Assessment of the case

Once we have gathered together all the evidence and perhaps engaged in some initial negotiation with the solicitors acting for the other side in the will dispute, a barrister’s objectivity is often indispensable for making a realistic assessment of the claim and the likelihood of it succeeding if the matter was to be heard by a judge in court.

Barristers are not only experts in the areas of law they specialise in, they are also trained in court procedure and are experts in assessing practical matters that can strengthen – and perhaps more importantly weaken – a claim, or defence in a will dispute.

Although I will probably have had the papers in a case beforehand, quite often, I will meet a Claimant or Defendant in a will dispute for the first time at a mediation or at court. At this point, my job will be to look at practical aspects of the case and explain these to the client. I can sometimes suggest a different way of looking at a dispute, or a possible outcome; for example, tax benefits from reaching a negotiated settlement through mediation which might not be available should a matter reach the courts. A solicitor may have been able to discuss these with a client, however, barristers will often have more experience of solutions which have been reached in other situations.

Finally, when a barrister is involved at a mediation stage, or brought in to a case in preparation for a court hearing, they will be assessing the personalities involved and how they may react in a court room situation. One of the benefits of mediation is that it avoids the need for the confrontation of a court hearing which may cause huge amounts of stress to parties or to the witnesses which may have a bearing on the outcome of the case.

Bringing a legal claim to challenge a will can be a complicated process which is why we always recommend using a specialist solicitor to manage your claim. However, in many cases, the additional legal services of a barrister will be vital in the successful resolution of your claim.

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legal texts may be of use in your will dispute. If you reach court, a judge will be involved to decide what the outcome should be.

Who will be involved in a will dispute?

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The legal system can be confusing if you haven’t had any experience of it before you needed to challenge a will. Here we look at the people who will be involved and the roles they play in your will dispute.

If you find yourself in the position where you feel you must take steps to challenge a will -either because you think the will is invalid, or because you feel you should have received more from the deceased – you will quickly discover that a number of people will be involved at different stages and for different reasons. In many cases, the legal system gives different names to the people involved. In this blog, we explain who will – or could – be involved in your will dispute, and the definitions used in the legal system.

The Claimant

This is you – the person challenging the will. You must have ‘an interest’ in the will concerned. This usually means that you will have been a close relative of the person who made the will, or were treated as such, although there have been cases where someone with a more distant connection to the deceased was able to bring a challenge, such as the recent case of Randall v Randall. In that case, the ex-son in law of the deceased was able to challenge a will, as otherwise, he would not have been able to resolve an issue arising from his divorce settlement which was linked to his ex-wife’s inheritance.

The Defendant

This is the person – or people – who must answer your claim. This could be other beneficiaries of the will, the executors of the will (or the administrators of the estate if there is no will and you are challenging how an estate has been distributed under the intestacy rules). It is often the case that this will be another family member. At Willclaim, we also act for Defendants in will disputes, so if you are aware that someone is challenging a will that you are either involved in executing, or that you benefit under, we can advise and assist you to defend the claim.

The Solicitor

You may initially approach an organisation like the Citizens Advice Bureau to raise your concerns, but if you are seriously considering making a legal claim in relation to a will or the contents of a will, you will need to take specialist legal advice from a solicitor with experience in ‘contentious probate’. Not every solicitor – and not every firm of solicitors – will offer this expertise, so make sure you choose carefully. The Association of Contentious Trust and Probate Specialists has a database of contentious probate specialists, or you may be able to find help from the Law Society using their ‘Find a Solicitor’ facility. We offer a comprehensive contentious probate service, dealing with all issues relating to contested wills and will disputes.

The Witnesses

Will disputes are almost unique in that the person who is the best placed to explain the will and what happened in the preparation of the will – to say whether they were pressurised into making a will a certain way, or to explain why someone was left less than someone else – is no longer here. With the Testator deceased, it is important to gather together as much evidence as possible relating to the circumstances that have given rise to the claim. Documents such as medical records and letters written by the Testator at the time when the will was made and leading up to it. Evidence from witnesses will also be important. These are people who can give evidence about the Testator and the Testator’s state of mind; they may be able to explain family history or other evidence which gives more details that can be used in the claim, or in the defence of the claim. Ideally, the witnesses will be co-operative and supportive of your side of the argument. In some circumstances, if someone has useful evidence but is unwilling to attend court, it is possible to compel them to come and give evidence.

The Barrister

If you’ve already engaged a solicitor to act in your will dispute, you may wonder why a barrister needs to be involved. A barrister is legally qualified, and will specialise in particular areas of law, offering independent and objective advice on your case. They are also trained advocates and experts in presenting cases in courts and also in negotiations which is why, even if you may be looking to reach a solution without going to court – perhaps through mediation– your solicitor may suggest getting a barrister involved to look at your case. Barristers are independent, and although they work in offices known as ‘chambers’ with other barristers, they are usually self-employed, the chambers acting as an ‘umbrella’ organisation run by clerks who co-ordinate the work of the independent barristers. They will have experience of many other cases, and how these have been resolved, and this can be invaluable in determining the strategy to adopt

The Mediator

Although some will disputes do end up in court, many legal challenges are resolved through negotiation or through mediation which is a quicker, more flexible and cost-effective way to resolve the issues you have. Unlike a judge in a court of law, a mediator cannot impose a decision on you. He or she will explore what the parties – the Claimant and the Defendant – would like to achieve, and then facilitate negotiations with a view to reaching an agreement. If mediation fails, the case may then proceed to a full legal hearing. You can read more about the role of a mediator here.

The Judge

Many will disputes are resolved through negotiation or mediation, but sometimes, this is simply not possible. The issues are too complex, or one or other of the parties (or both) are unwilling to compromise and reach a solution that both can live with. Ultimately, the dispute could end up in court, in which case, a judge will listen to the arguments put forward on both sides, examine the legal position, and reach a decision on the issue or issues, which will be in favour of either the Claimant or the Defendant. Having decided in favour of one or the other, the judge will then determine what should happen. The judge is restricted in what he or she can decide is the practical outcome (‘who gets what’) by legislation and court procedure, so you may find you end up with a result that doesn’t work as well as a mediated settlement, even if they judge ruled in your favour.

You may be surprised by the number of people who will be involved in your will dispute – it’s important to remember that this is a complicated area of law requiring expert advice to ensure a successful outcome. If you would like to talk to us about your situation, whether you are thinking of challenging a will, or you are a defendant in a will dispute, please get in touch! We offer a free initial assessment of will dispute claims, and can usually act on a ‘no win no fee’ basis if you decide to proceed with your claim.

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alcoholism in itself does not mean a person making a will does not have testamentary capacity, or that they will be more open to undue influence

Alcoholism and the validity of a will

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A recent case looks at the relationship between alcoholism and testamentary capacity, and illustrates the reluctance of the Courts to overturn a will based on undue influence – particularly if an experienced solicitor has been involved in drawing up the will.

As is often the case when the validity of a will is being challenged, the claim will be made up of a number of elements. In the recent case of Edkins v Hopkins and others [2016] EWHC 2542 (Ch), the court had to consider the issues of mental capacity, whether the Testator knew and understood the contents of his will when he signed it, and the question of undue influence, relating to the will of Philip Hopkins who was suffering from conditions relating to alcoholism at the time his made the contested will.

The Facts

Mr Hopkins, a businessman, had made a will in 2006 under which his then partner, Dorothy Ralph received his principal residence and his interest in any pension provision. Also benefitting was Mr Edkins who had worked in Mr Hopkins’ business since 1990, who was to receive half the shares in the business along with Colin Hopkins, one of Mr Hopkins’ 3 sons. The other 2 sons, Alistair and Richard, with whom he had a difficult relationship, were to receive a share of the company profits. Mr Hopkins subsequently married Ms Ralph, and relations with Colin Hopkins deteriorated. He invested in property in St Kitts, but also began drinking heavily and developed serious, alcohol-related health complications. His relationship with his new wife suffered, and he became more reliant on Mr Edkins.

In 2014, Mr Hopkins made a new will which left the bulk of his assets, specifically those related to his business, to Mr Edkins. The residuary of the estate (which was substantial) was divided 75% to Mr Edkins, 25% to his wife and 3 sons. The wife and sons entered a caveat, challenging the validity of the will on the grounds that Mr Hopkins did not have testamentary capacity when he made the 2014 will; that he did not know or understand what he was signing; and finally, that Mr Edkins had exercised undue influence over Mr Hopkins in relation to the 2014 will.

After extensive fact finding, the judge found that the 2014 will should stand.

  1. One the question of testamentary capacity, while medical evidence including hospital records, noted periods of confusion, the judge was satisfied that Mr Hopkins did have the mental capacity necessary to create a valid will.
  2. The judge was also satisfied that when the will was executed (which took place in the presence of a solicitor and was witnessed by 2 of the solicitor’s colleagues) Mr Hopkins knew and understood the contents of the will.
  3. Finally, while he accepted that Mr Hopkins was in a vulnerable and at times confused state of mind due to his alcoholism, and that Mr Edkins was in a position where he could have exerted influence over Mr Hopkins, and did have a degree of control over Mr Hopkins, it was ‘a step too far’ to find that Mr Edkins’ control took away Mr Hopkins free will in a way that amounted to undue influence.

The involvement of an experienced solicitor

What seems to have been a prominent feature of the judge’s decision making was the fact that an experienced solicitor was involved in the drafting and execution of Mr Hopkins’ 2014 will. She had made lengthy attendance notes and gave evidence to the effect that although she appreciated that he was unwell at the time she took instructions relating to the will, she was comfortable that he understood what he was doing – that he knew the extent of his property, and the effect of the will he was asking to have drawn up. This also assisted Mr Edkins on the question of whether Mr Hopkins knew and approved the contents of his will when the time came for the will to be executed. The solicitor read through the will to Mr Hopkins, and then passed it to him to read, after which he confirmed that the will was fine. She also made an attendance note of the visit.

Control was given and not taken

The main issue relating to the question of undue influence was the extent of the control Mr Edkins had over Mr Hopkins life, increasingly so as his health deteriorated. However, the judge felt it was important to put this in the context of the long term relationship Mr Hopkins and Mr Edkins had enjoyed, and the significant levels of trust that Mr Hopkins had placed in Mr Edkins. Even Mrs Hopkins, the estranged wife, agreed with this. The judge found that Mr Edkins had been reticent in his evidence about the extent of control he had over Mr Hopkins affairs. However, even allowing for this and for the fact that Mr Hopkins was more mentally and physically vulnerable, it was not appropriate to make the small jump from that finding to a finding that Mr Edkins had exercised undue influence over Mr Hopkins. The judge noted that the 2014 will really seemed to reflect Mr Hopkins’ continued desire, already evident in the 2006 will that his business should keep going. Due to issues in relation to his sons, Mr Edkins “looked the best prospect of fulfilling that wish.”.

If you have any concerns about the circumstances in which a will was drawn up, we can help! Get in touch for a free initial assessment of your situation and any possible legal claims you may have in respect of a will.

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A Mediator ’s View of a Will Dispute

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Many people hold a view of a legal dispute that includes a court room drama worthy of a John Grisham novel, but the reality is very different, and this applies as much in the context of a will dispute as to any other legal claim (criminal matters aside). Mediation now plays a big part in resolving will disputes – it’s a process of dispute resolution that you may not have come across before, but has several advantages for those involved. We talked to Phil Hesketh, an independent mediator, to give an ‘inside view’ of a will dispute – from the mediator’s perspective.

How did you become a mediator?

I qualified as a solicitor and worked as a personal injury solicitor, acting for injured workers. I felt I was providing a valuable service. However, I trained as a mediator in 2006 and realised I had found my true vocation. I discovered that I found helping people resolve their disputes as an independent party (rather than as a personal injury lawyer where I represented one side of a dispute) much more rewarding!

What do you consider to be the value of mediation?

Mediation offers several advantages if you’re involved in a will dispute. It’s much quicker than waiting for a trial. The mediation takes place on one day, and the parties retain control of the process. Another advantage over a trial is the parties cannot have a bad decision imposed upon them – if a solution is reached, it is because the parties all agree to it. There are huge cost savings for everyone involved if a will dispute is resolved through mediation. Finally, mediation gives the opportunity to work flexibly and draw up an agreement that resolves the issues in a more creative way than a court judgement can.

What is your role in the mediation?

It’s important to point out that I am independent – I work for both sides. I’ll communicate offers and discuss responses, with the aim of helping the people involved move towards a settlement acceptable to all. I can only pass on information from one person if they have given me permission to do so. As a mediator, I am there to tease out the issues, really get to the heart of what the people involved are seeking to achieve, and then help them to reach a solution. I’ll spend time finding out what each party is looking for. On first discussion, this can be quite general. Parties will say they “want an end” to the dispute, or “a fair resolution” so I need to understand what that means to them. Once this is clear, I can help the parties work towards agreement. I do this by moving between the private rooms where the different parties are based for the day, talking to each side.

How do you manage a situation when one side makes an offer that you know will upset the other side?

It’s not my job to judge what is a good or bad offer. On the other hand, if I know that an offer being proposed is likely to harm the negotiation process, I can invite them to reflect on whether, ultimately, making that offer will help them achieve the solution they are looking for. I help them explore other options but ultimately the parties decide what to do.

Are there any ‘down sides’?

Sometimes I finish a mediation with the parties having agreed a solution to their legal dispute but they have done this without actually speaking to each other during the process and leave it feeling as bitter and acrimonious towards each other as they did when they started. I feel this type of mediation, although resolving the legal dispute, misses a great opportunity for the parties to start some repairs to their relationship. I don’t mean that they will become best friends but just that they can deal with each other in the future in a more constructive way, without the need to correspond through lawyers. Not everybody wants to even consider this as an outcome but the potential is there and I am always disappointed when the parties decide not to engage with each other.

And the positives?

Well, aside from the advantages I’ve already mentioned, mediation offers the people involved an opportunity to be listened to, to have their complaints acknowledged, and to explain how the situation has impacted on them – even if it is just by me as the mediator. It’s a much ‘safer’ environment than a court room. Ideally, mediation results in the parties walking away having decided how to resolve the dispute and feeling in control of the outcome. Even if the mediation doesn’t result in a settlement, then the process should have helped the people involved be clear about the issues, and have a full understanding of why they decided not to settle.

Phil Hesketh is an independent mediator and consultant personal injury lawyer based in the northwest of England. You can read more about his services on his website.

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a conference room is where you may spend the day if you engage in mediation to resolve your will dispute

The benefits of Mediation in a will dispute

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In a series of blogs in which we look at mediation and the role it plays in resolving a will dispute and other contentious probate matters, here we consider the benefits of mediation.

What is mediation?

Mediation is a form of dispute resolution which involves negotiation between the parties, managed by an independent mediator. Mediation will take place on a particular day, and in a specified location. The person bringing the claim, and all the other parties involved, attend with their legal advisers. Although there may be an initial ‘joint meeting’ with everyone in the same room, for much of the mediation, the parties involved in the will dispute will be in separate rooms, with the mediator moving between rooms to communicate and discuss what is on the cards.

What happens during the mediation remains confidential. If the mediation does not result in an agreement and the case does go to a court hearing, nobody can refer to something that was said during the mediation.

The rules governing contentious probate disputes require the parties involved to consider and engage in some form of dispute resolution before a court hearing can go ahead. If you unreasonably refuse to co-operate, you can face stiff penalties from the courts, usually involving the payment of costs.

Mediation puts the individuals involved in the claim back in control

If you’ve ever had the experience of taking part in a full court hearing, you’ll perhaps appreciate that the individuals bringing or defending the claim can often feel as if they are playing a ‘walk on’ part in someone else’s drama. The whole scene is set up in a way that the lawyers and the judge play the major part, while you will only be able to speak when giving evidence, and being questioned.

Although you are legally represented during a mediation, there is none of the formality of a court room, and you are free to speak directly to the mediator should you wish to do so. Of course, if you don’t feel comfortable with this, your lawyer will be there to handle the negotiations, but this is up to you. Another way in which the parties are more in control is that the outcome will be agreed between them, rather than imposed by a judge. This, in itself, has lots of advantages, which we’ll look at next.

Mediation offers flexibility

If your dispute reaches a court hearing which runs to its conclusion, the judge will have very limited options. Your claim (or the claim you are defending) will either succeed or not, and the judge will be obliged to follow the outcome of that decision. In practical terms, this could mean that a will is held to be invalid in its entirety (a judge can’t decide that only part of a will is invalid) with all the consequences that follow from this.

A mediation is a far freer forum, unconstrained by the conventions of a court hearing and the restrictive options that a judge has open to him having heard evidence and legal submissions. No one ‘makes a decision’ in a mediation; there is no judgment. Instead, the parties involved negotiate to reach a conclusion to the matter, and this can include far more flexible and creative solutions than are open to a judge.

Mediation can result in creative and tax efficient settlements

Following on from the point about flexibility, a judge is limited in his options and can’t take into account things like potential tax consequences of a decision – this could mean that although you succeed in your claim, you may incur other disadvantages as a result.

The flexibility that mediation allows means that all these additional possibilities and consequences can be thrown into the mix as part of the negotiation, with the aim of reaching a far more practical solution to the issues than could be achieved in a court room. Settlements reached through mediation can include acknowledgements by one or both of the parties in relation to the situation that they found themselves in.

Mediation offers a significantly more cost-effective option than litigation

No one can enter into a legal dispute without giving a thought to costs. For most people, it will be a very significant thought – because legal costs can be extremely high. If a will dispute reaches a court room, the costs of the exercise can well reach 6 figures. Even if you have a ‘no win no fee’ arrangement with your legal team, and you win your claim, you won’t be able to recover all your costs from the losing party, and the legal costs can eat into any sums of money you have secured. If you lose your claim, you may not have to pay your solicitor’s fees but there will be other costs that you will have to pay, such as court fees. You may also have to pay the costs of the other side.

Mediation offers a far more cost-effective solution. That isn’t to say there will be no costs involved, but they will almost always be significantly less than the costs involved in proceeding to a court hearing, which has no certainty, and quite a number of risks involved.

Mediation can be a less stressful solution

Sadly, the reason you are contemplating this kind of legal action is because someone close to you has passed away. A court hearing can add even more stress to what is already a stressful situation.

Mediation is a much less stressful approach which allows you to be heard, but in a more comfortable environment than a court room. It will almost certainly involve compromise to reach an agreement. However, you will achieve a negotiated settlement that may be more beneficial to your situation than a court decision will be. Further, you will get there far more quickly and less expensively than going all the way to court, allowing you to put the matter behind you.

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we strip back a will dispute to its bare bones and look at the anatomy of a will dispute

The Anatomy of a Will Dispute

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Challenging a will can take two different forms – either a challenge to the validity of the will itself, or a claim for ‘reasonable financial provision’ under the Inheritance Act (essentially a claim that you should have been left more by the person who has died). You may not know yourself when you contact a solicitor which type of claim you will be bringing. However, although there will be differences, there are also enough broad similarities in practical terms to give you an idea, in general terms, of ‘the anatomy of a will dispute’.

Initial Steps

Even if you are already concerned about the contents of a will or the validity of a will, under English Law, you can’t take any action until the person who made the will has passed away. Once you become aware of the contents of the will, and feel that it needs to be challenged, your first steps are to take action to make sure that probate cannot be granted without you being informed. If you think the will itself is invalid, you need to enter a caveat on the Probate Register.

If you do not dispute the validity of the will, but feel that you should have received more under the will, you can enter what is called a ‘standing search’ which means you will be notified when Probate has been granted. This starts the 6 month time limit for bringing a claim under the Inheritance Act.

If you are not sure what you should be claiming, you should take legal advice to make sure you protect your position in the right way – either with a caveat or a standing search.

Taking Legal Advice

If you have not already done so (you don’t need a solicitor to enter a caveat), you should take legal advice at an early opportunity so that you can understand what you will need to prove your claim. It’s important to use a solicitor who is experienced in will disputes – they will be able to give you practical advice about the strength of your claim, and to talk through the issues and possible outcomes of legal action.

At this early stage, your solicitor will talk to you about legal costs and how the claim will be funded. In many cases, you will be able to enter into a ‘no win no fee’ agreement, such as the arrangements we offer our clients.

Kicking off the claim

Once you have spoken to a solicitor about your claim, established the type of case you are going to bring, and instructed the solicitor to act for you, you may find that things go quiet for a while. Be assured that this doesn’t mean nothing is happening!

Your solicitor will be taking steps to contact solicitors acting for the people who you will be bringing the claim against. This could be the executors of the will, other relatives, or perhaps another unrelated beneficiary under the will in question, such as a charity.

As a solicitor regularly instructed to act in will disputes, there are various actions I will take depending on the type of claim. I will need a copy of the will in question, and any previous wills. I will also contact any solicitors who were involved in drawing up the disputed will and requesting the ‘will file’. I may also apply for the medical records and social services records of the Testator if a claim is to challenge the validity of the will. The facts of each case will determine the kind of evidence I will be looking for. In will validity claims, there may be a number of reasons to argue that the will is invalid; equally, it may be a case where we could argue both will validity and a claim under the Inheritance Act.

Once I have received all these files and documents, I will kick off the claim fully with a letter of claim detailing the basis of your claim and the supporting evidence, and take it from there.

Negotiation and Mediation

Essentially, once a full letter of claim has been sent off to ‘the other side’ in the dispute, your solicitor will be working to gather as much additional evidence he or she can find to support your claim. This could include witness statements from doctors who were treating the testator at the time he or she made the will. It could include evidence from their friends or relations or others involved in the Testator’s care. Your solicitor may ask for advice from a barrister (counsel), a second opinion, about the case. Unlike your solicitor who will have been living and breathing your case from day one, a barrister can often offer a different perspective, and will be able to advise on the strength of your claim. The advantage of using a barrister is that he or she will have extensive experience about how the court is likely to view your claim.

While all this is going on, it is also very likely that your solicitor will discuss the possibility of negotiating a settlement to resolve the claim, or of using a mediator to see if agreement can be reached. It may be that from an early point, the possibility of settling will be placed on the table.

There are a number of benefits of reaching a settlement rather than pursuing the matter to a full court hearing, not least because it keeps the costs down, and puts you in control of the outcome, rather than relying on the decision of a judge. Even if solicitors cannot negotiate a settlement between themselves, a mediation, which takes place over the course of one day, will still prove a more cost effective than proceeding to a full hearing in court.

A Day in Court

A great many will disputes don’t get as far as court. In many cases, the parties can reach an agreement through negotiation or using dispute resolution such as a mediation. However, there will always be some cases where the parties involved simply cannot reach mutually acceptable common ground, so your solicitor will be involved in preparing for a hearing in court. At this stage, if we haven’t already done so, we will need to get a barrister on board.

You are unlikely to get a decision on the day of the court hearing, and may well have to wait. There may also be additional hearings relating to costs issues.

Of course, every case is different, and so there will always be variations, depending on the type of claim, the evidence, and the strength of the claim you are looking to bring. At Will Claim, we take great care to make sure you get the best advice whatever your claim and circumstances, with a view to reaching a beneficial outcome. If you would like to talk to us about a possible will dispute, please get in  touch!

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The importance of knowledge and approval

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A recent case has highlighted the importance of making sure that a Testator knows that they are executing a will, and understands and approves the contents of that will

One of the bases for challenging a will is that the person who made the will did not have knowledge and approval of the contents of the will. In the recent case of Poole v Everall the courts had to determine this in a complicated case involving a testator with a history of mental health problems and cannabis abuse

The Facts

David Poole had a history of cannabis abuse and mental health issues arising from a motorbike accident in 1985. He had been awarded a substantial settlement to assist him with his needs, and was primarily cared for by Mark Everall under a type of adult fostering scheme run by the council. His financial affairs were handled by a solicitor, latterly as a Deputy appointed under the Mental Capacity Act.

A will was drawn up in February 2012 under which the beneficiaries were David’s brothers, and a number of charities. However, he then drew up a different will in December 2012 leaving 95% of his estate to Mark Everall, his carer, and the remainder to his girlfriend. The brothers challenged on the will on the following bases – the will had not been properly executed, David did not have mental capacity to make the will, and that he did not ‘have knowledge and approval’ – primarily, he did not understand and approve the contents of the will. There was also a claim that Mark Everall had exercised undue influence and fraudulent calumny over David. After hearing detailed evidence about the complex interactions between David, his Deputy, and the carer, Mr Everall, the judge decided that the December will should be overturned, and the February 2012 will, which benefited the brothers, should stand.

  • The judge was satisfied that David knew he was executing a will in December 2012 – the real issues was whether he understood the contents of that will – and that the new will did not leave anything to his brothers.
  • As Mark Everall, the carer who was the executor and main beneficiary under the December will, was seeking to rely on it he had to prove its validity.
  • The facts of the case, coupled with David’s vulnerability and suggestibility and the ‘self-serving’ nature of Mr Everall’s evidence meant that the judge was unable to agree that David knew and approved the contents of the will.

Full understanding – knowledge and approval – is vital to avoid a challenge

In his judgment, the judge highlighted that fact that had the December will been executed before an independent solicitor who had read the will out to David before he signed it, there would have been a presumption that he did have full knowledge of the contents of the will. It’s clear that in this case, no presumption could be found. At the time the will was executed, Mr Everall made a recording of a conversation with David in an attempt to counteract any future challenge. However, although this referred to the contents of a ‘letter of wishes’ it did not deal with the will itself.

The key lesson is how important it is to make sure that the Testator understands the contents of his will and approves them at the time he or she executes his will. It’s clear that the circumstances of the case were sufficient to arouse suspicion. The December will represented a complete change from previous wills and the wishes of David that had been recorded in the run up to the preparation of the earlier will.

If you are concerned about the circumstances surrounding a will, we can offer a free claim assessment to talk through your options.

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A no win no fee agreement means you won't have t scrape together your loose change to fight a will dispute

The costs of challenging a will

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You may well have read stories in the press about high profile will disputes and the legal costs that are involved. While it’s true that bringing a challenge to a will is unlikely to come cheap, there are a number of options open to you which means you don’t have to find the money up front, and will only have to pay costs if you succeed in your claim. In this blog, we look in more detail at ‘no win no fee’.

What are the costs of challenging a will?

Bringing a challenge to a will inevitably involves costs. It’s an exceedingly complex area of law. While there is no requirement to use a solicitor, an expert in this area of law will be able to advise you on the strength of your case, the preparation of evidence and negotiate to see if a settlement can be reached without going to court. If a will dispute cannot be resolved and ends up before a judge, there are further costs preparing for the hearing, perhaps instructing a barrister, and the time spent in court at the hearing. The idea of all the costs may make you think twice before pursuing the claim. Community Legal Service funding (formerly legal aid) is rarely available for this kind of legal action, however great the injustice.

So if you don’t think you can afford a claim, what are the options?

Bringing a claim without legal advice

As we’ve already mentioned, there is no requirement to use a solicitor to bring your claim. You may be able to get some support from organisations such as Citizens Advice, but it is unlikely that you will be able to obtain comprehensive legal advice throughout the claim unless you engage an experienced solicitor who specialises in will disputes. Contesting a will involves complicated legal concepts, and procedures – and if you don’t follow the processes correctly, you may find you cannot bring your claim. This is regardless of how strong your claim might be. It’s also worth remembering that if you choose not to use a solicitor, you may find the pressure of working on the claim yourself without support takes over and has a detrimental impact on other areas of your life. You will also incur some costs such as the costs of registering the claim with the court.

No win no fee

In some cases, you may find you have legal expenses insurance if your home insurance policy (or another insurance policy) includes this option. If this is the case, your legal expenses will be covered by your insurance company. Another, increasingly common way of funding legal action is ‘no win no fee’. This doesn’t just apply in will dispute claims. The idea is that you will only have to pay your legal costs if you win your claim. Depending on the type of dispute, the costs may be recovered from the other side, from the estate of the testator or out of the monies you had been successful in claiming. However, this is still a better position than having to find the money to bring the claim up front.

No win no fee from Will Claim

In practice, our experience in this specialist area of law means that we will always assess any will dispute carefully at the outset, and as the claim progresses – for example as more evidence becomes available. The reality is that most of these types of claim are settled without the need for a court hearing or simply not pursued. Costs will be dealt with as part of settlement. If the case does go to court and you are unsuccessful, quite simply, we don’t get paid! Using no win no fee gives you the reassurance of being able to bring a claim and know that you will not face a huge legal bill at the end of it.

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adult hand against a white background indicating that entering a caveat will stop the probate process

Entering a Caveat to raise your concerns

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In the emotionally charged period following the death of a loved one, you may become aware of circumstances that make you concerned about the contents of their will – but what can you do? In our blog we look at some of the practical steps you can take, including entering a caveat on the Probate Registry.

Moving quickly is vital

You may have concerns about the way a will was drawn up – perhaps you think the person who made the will – the Testator – was bullied into leaving his or property in a particular way, or did not know what he was doing when he made the will. Perhaps you have been included in the will, but feel that you have not been left a reasonable amount. Whatever your reasons for challenging the will – be it that you wish to challenge the validity of the will itself, or simply challenge the way the Testator’s assets will be distributed, it’s vital to move quickly.

Time limits – and the question of evidence

If you want to challenge the amount of money or property you have been left, by bringing a claim under the Inheritance Act, there are certain time limits you must stick to, otherwise you will have left it too late to bring a claim before the courts.

If you are challenging the validity of the will itself – for example because you think the Testator did not know what he or she was doing, or properly understand the contents of the will – or because he was made to make his will in a particular way – there is no specific time limit to bring the claim before the courts. However, you need to bear in mind that the longer you leave it before taking action, the harder it will be to gather strong evidence to support your claim. In these types of cases, evidence from people who knew the Testator will often be vital – and as time goes on, memories fade, and the people you need may themselves pass away. This means you will be left without the evidence you need to prove your case.

Entering a Caveat

If you are intending to challenge the validity of a will, one step that is very important to take before you do anything else is to enter a Caveat with the Probate registry. This is the official way to flag up your concerns about the will. Once you have entered a Caveat, a Grant of Probate cannot be made. This means you can bring your claim to challenge the will before the Testator’s estate has been distributed.

Some points to bear in mind about entering a caveat

  • You can enter a caveat without a solicitor
  • The process to enter a caveat simply requires you to contact your local Probate Registry with the full details of the Testator – full names and details of his death. It currently costs £20 to enter a caveat, and you must make an application using form PA8A. More details can be found on the Government website
  • A caveat lasts for 6 months – you may need to renew the caveat if you have not resolved your claim by then
  • You can withdraw a caveat at any time
  • Someone else who wants probate to go ahead can issue a ‘warning’ to remove the caveat. If this happens you will be notified and you will have 8 days to respond.
  • If you are planning a claim under the Inheritance Act, you shouldn’t enter a caveat – rather enter a ‘standing search’ so that you will be notified once Probate has been granted and the 6 month period for bringing your claim starts to run.

Even if you have entered a caveat without legal advice, it’s vital that you gather together any evidence you have that the will in question is invalid. You should seek specialist legal advice about the strength of your claim and any additional evidence that you will need to try and obtain to strengthen your chances of success. We offer a free claim assessment for people considering bringing a challenge to a will – why not get in touch?

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2 older men whispering to each other perhaps one is poisoning the other's mind

Undue Influence or Fraudulent Calumny

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In our last blog (at least for now) about undue influence, we look at undue influence and fraudulent calumny

We’ve covered the issue of ‘undue influence’ in a couple of recent blogs, looking at the principles of undue influence as set out in the case of Edwards v Edwards, and then looking at undue influence in practice, looking at some cases where undue influence was – and where it wasn’t – proved. In this blog, we look at a related but different issue: “fraudulent calumny” and how this differs from undue influence.

What on earth is fraudulent calumny?

It’s an indication of how archaic the law can sometimes seem that there is a concept in will dispute law referred to as ‘fraudulent calumny’. Essentially, this refers to a situation where someone (person A) ‘poisons the mind’ of the person making the will (T)’s mind against someone else so that this someone else (B) is then left out of T’s will. This is not about A threatening or otherwise persuading T to make his or her will in a particular way. It is about A acting in a way that leads T to think less of B, to the extent that T then decides not to leave anything (or to leave less than he or she would otherwise have left) to B.

The difference between undue influence and fraudulent calumny is subtle, but it is important to understand. Undue influence is where A essentially coerces the person making the will to do so in a particular way that either benefits someone who would not otherwise have benefited (not necessarily the person doing the coercing) at the expense of B or leaves out B entirely. However, when undue influence is in play, A does not try and change T’s view of B – only to influence the contents of the will. Fraudulent calumny is about A changing T’s perception of B so that T appears to leave B out of the will of his or her own accord.

What is required to prove fraudulent calumny?

The case of Edwards v Edwards looked at what would be needed to prove fraudulent calumny.

A poisoning of the mind

As we mentioned earlier, rather than influencing the way a will is written, fraudulent calumny is about A influencing how T views B.

No other explanation

A vital element of fraudulent calumny is that there can be no other explanation for the way that the will has been written.

Knowledge of the lie

If you are looking to prove that A influenced T’s view of B, you must show that A knew what he was saying about B was untrue, or did not care if it was true or untrue. If A believed that what he was telling T about B was true, then even if those things were objectively untrue, this cannot alone be used to declare the will invalid.

A natural beneficiary

The other important factor when proving a fraudulent calumny is that ‘B’ must be ‘a natural beneficiary’ of T. This must be someone who would expect to benefit under T’s will – a child or near relative perhaps.

Fraudulent Calumny in action

Cases involving fraudulent calumny are even rarer than cases involving undue influence, but there are some that have reached the courts. Perhaps the key case is Edwards v Edwards, a case we’ve mentioned before. The facts were that a mother left her entire estate to one son (A), and nothing to her other son (B). B did not live close to his mother, but still did a lot for her and there was no reason that he should have been left out of the will. A lived with his mother and drank. It was established that A’s mother was scared of him, and also that A had told his mother that B had stolen money from her. The judge found that there was no other explanation for the way the will was written other than that A had poisoned her mind against B (and against B’s wife).

Not to be undertaken lightly

While some may consider fraudulent calumny to be an extreme form of undue influence, the key for anyone contemplating bringing a claim is to remember that they will need very strong evidence to prove that A made the allegations, cast the aspersions, fed the poison to T, and also that A knew or did not care that they were false allegations.  As T will not be around to give evidence about what had happened in the run up to making the will, anyone seeking to prove fraudulent calumny will need to think carefully about what evidence  they have – perhaps in the form of statements from other friends and family members close to T, letters or diaries.

If you think you may be in a situation where there has been fraudulent calumny or undue influence which has affected your inheritance, it’s vital to talk through the options you have to challenge the will concerned with a specialist. We are will dispute experts and offer a free claim assessment . We can handle most cases on a ‘no win no fee’ basis, making the whole process far more affordable than you might have thought.

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Undue Influence – what will (and what won’t) be enough?

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Considering the question of ‘undue influence’ in more detail

As we recently explained, proving undue influence when challenging a will can be difficult – but it’s not impossible. In this blog we look at some examples of circumstances where the courts have determined that undue influence was present – and also some examples of where it wasn’t.

Undue Influence – the principles

In our earlier blog about undue influence, we looked at the principles governing claims where ‘undue influence’ is said to make a will invalid. These were set out in the case of Edwards v Edwards. The fundamental points to prove are that the will

  • does not reflect the true intentions of the testator (the person who made the will); and
  • the reason for this is the behaviour of another person (although not necessarily someone who benefits under the will concerned).

Whether there has been undue influence will be a question of the facts in each case.

Vulnerability and constant telephone calls

So let’s look at the first of our case studies where the courts agreed that there had been undue influence which meant the testator’s will did not reflect her true intentions. In Schomberg v Taylor, the testator had made a will in 2005 in which she left most of her property to her stepsons. However, in 2008, she made a new will leaving most of her property to her nephews and only small gifts to her stepsons. In challenging the 2008 will on the grounds of undue influence,  the stepsons brought evidence that the nephews’ father had repeatedly telephoned Mrs Taylor asking her to change her will in favour of his sons. The phone calls had continued to such an extent that the testator asked her carer not to put his calls through to her. The court found that at the time of the phone calls, Mrs Taylor was vulnerable following the death of her husband. The court found that in the circumstances, given Mrs Taylor’s vulnerability and her wish to make the persistent telephone calls stop – she had bowed to pressure to make the new will which did not reflect her true wishes. There had been undue influence.

‘A forceful man with a forceful presence’

Another case where undue influence was successfully argued was Schrader v Schrader. In this case, the testator’s first will divided her property equally between her sons. This will was superseded by a later will which treated one son, Nick, more favourably than the other, giving him the house. At the time this new will was made, Nick was the testator’s sole carer and was known to be ‘a forceful man with a forceful presence’. The will writer engaged to draw up the will had had no contact with the family beforehand and the reason given to the will writer for giving the house to Nick was inaccurate. The court decided this was probably because Nick had given the reason, rather than the testator. The court also found no real reason why the testator should change her will in this way. In addition, there was evidence that Nick had felt that he had been unequally treated by his parents in the past. He had initially sought to cover up both the existence of the later will, and his role in drawing that will up, which the court felt suggested he himself had misgivings about the circumstances of the will. Taking all the facts together, the court found that Nick had unduly influenced the testator to leave him her house. The later will was invalid, and the earlier will which treated the brothers equally was declared to be the true will.

Although you may have suspicions that undue influence has been brought to bear, it’s important to remember that suspicions are not going to be enough to prove that there has been undue influence. You must be able to show that undue influence was brought to bear, and that this meant that the will did not reflect the true intentions of the testator. Just because a will appears to be ‘unfair’ does not of itself mean there has been undue influence.

Suspicious circumstances are not enough

Hubbard & another v Scott and others is another case where suspicious circumstances alone were not enough to lead to a conclusion of undue influence. The testator’s first will left his estate to a friend and neighbour, and if she did not survive him, then the estate was left to his daughters. When the neighbour died, the testator made a new will which left everything to his cleaner, Mrs Kruk. The daughters argued that there was no reason why their father should have suddenly decided to leave his family out of the will. They argued that he had only known Mrs Kruk for a couple of months before his death, and she had never been more than his cleaner – there was no closer relationship. They also raised concerns about Mrs Kruk’s behaviour after the testator’s death, concealing the fact of the death and the funeral arrangements from friends. All very suspicious – however, there was no evidence that Mrs Kruk had somehow pressurised the testator into making a will that left everything to her and the expense of his family. The judge found that the testator’s behaviour could simply be explained as that of a lonely, elderly man whose daughters visited him only infrequently, and there was no one else to whom he wanted to leave his estate.

Undue influence must be the only explanation

In Wharton v Bancroft & others the will concerned was drawn up within hours of the testator being discharged from hospital with terminal cancer. The will left everything to his long term partner, Maureen Wharton, who he then married an hour after executing the will. Not apparently suspicious, however, it had been the testator’s stated intention for a long time that his estate would be left to his 3 daughters, with his partner having a life interest. The testator had also been part funding his granddaughter’s education, and the will made no mention of this. Witness evidence from individuals who had nothing to gain from the will was that after leaving hospital but before drawing up the will, the testator had confirmed his intentions to leave property to his daughters. He also reassured one of the daughters that the granddaughter’s school fees would be taken care of. Further, the judge was not entirely convinced by the evidence of Mrs Wharton. However, despite all this suspicion, the judge did not feel able to find that there had been undue influence. He could not conclude that undue influence was the only explanation for the testator’s behaviour – rather the testator could simply have changed his mind and ‘put his house in order’ having decided to marry his partner of 32 years.

Expert advice is crucial

Hopefully, the examples above have given you a more practical idea of what will and won’t amount to undue influence. If you are worried about the circumstances in which a will was drawn up, your first step must be to take legal advice so that you understand the strengths and weaknesses of your case, what your options may be, and the possible outcomes of pursuing legal action. If you’re considering bringing a case to overturn a will because of undue influence, talk to us first!

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Will disputes – taking action before the testator has died

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If you suspect that someone has made a will in suspicious circumstances, is there anything you can do before that person dies?

The papers have recently reported a number of situations where high profile individuals: Bill Gates, Nigella Lawson and the like – have declared their intention to leave the majority of their fortunes to charity rather than their children. In these cases it seems unlikely that there is anything untoward going on – but what happens if you suspect that a relative is being put under pressure to draw up a will that does not reflect his or her true intentions?

A recap on the grounds for challenging the validity of a will

It’s worth remembering that there are specific grounds to challenge the validity of a will. These are:

  • The will must be correctly signed and witnessed;
  • The person making the will (the testator) must have the mental capacity to do so, and understand the extent of their estate and who they are leaving it to;
  • He or she should know and approve the contents of the will; and finally
  • There is no undue influence being placed on the person making the will

It is quite difficult to challenge the validity of a will on any of these grounds, usually because by the time the contents of the will have been made public, the testator is dead and cannot speak about his or her state of mind and what was going on at the time the will was drawn up and executed (signed and witnessed).

Action before death

The basic rule is that even if you suspect that someone has drawn up a will that is somehow invalid for one of these reasons, you cannot bring a challenge until the person has died. If you have suspicions about a will, it is important to enter a Caveat at the Probate Registry, which will mean that probate (and therefore the distribution of the estate according to the will you wish to challenge) cannot go ahead without an investigation into the circumstances. However, this cannot be done until the testator has died.

In some states in the USA, there are provisions which allow the provisions of a will to be challenged before the testator has died. Once a will has been drawn up, the beneficiaries, and family members who have been left out, are advised of the contents of the will and then have a specific period to challenge the will. If no challenge is brought in this specific time period, those individuals cannot challenge the will at a later date.

Steps to take

If you are aware of circumstances that could invalidate the will, you can take steps to improve your case by collecting as much evidence as possible while the testator is still alive. Evidence about his or her mental state, for example. Where you feel undue influence is being exerted over the testator, it may be worth talking to professionals involved in his or her care and raising your concerns that way; gather as much evidence as you can – bearing in mind that this may be difficult. You could even talk to a specialist lawyer who deals with will disputes to see what they recommend in the particular circumstances you are experiencing.

If you are concerned about the welfare of a close friend or relative and how that may have an impact on arrangements for their estate, you may need to act quickly following their death, either to prevent a grant of probate or letters of administration, or to bring a claim that you have not been adequately provided for in the will or under the intestacy rules. Taking early advice will put you in the best possible position.

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The Trouble with Undue Influence

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One of the ways you can challenge the validity of a will is by showing that the testator was subject to ‘undue influence’ – but this is not always easy

Someone you were close to has died. Whatever the circumstances, this is always going to be a highly emotional and distressing time, with lots to reflect on and organise. When you are also concerned that the will made by the deceased does not reflect his or her true wishes, brought about by pressure from someone else, not only can it increase the stress you are under, but you will be left wondering what can you do? In this blog we look at the difficulties you will face if you are trying to prove that the contents of a will are the result of someone else placing ‘undue influence’ on the person who made the will (‘the testator’).

What is undue influence?

Undue influence is where the testator, the person making the will, was put under pressure, or coerced by someone else, to make the will in a particular way that does not reflect the true wishes of the testator. For example, I might want to divide my estate equally between my grandchildren, but one of my children might seek to pressurise me into leaving more to one grandchild than the other. My intention, my true wish might remain to leave my property equally to my grandchildren, but as the result of the pressure my child placed on me, I might give in and make my will in a manner that did not reflect this. Undue influence is rarely this simple – but hopefully you will see what we are getting at.

Undue Influence could manifest itself in a will that leaves out some people who might otherwise have expected to receive a share of the estate. Alternatively, it could be seen in a will that leaves more generous gifts to some people at the expense of others, and in a manner that is, at the very least, surprising. However, just because the contents of a will are unexpected, it does not mean that there has been undue influence at play. For a will to be invalid for this reason, the testator must have been subjected to physical or psychological pressure, and the will be drawn up in a way that does not reflect their true wishes.

Proving Undue Influence

There is a very high burden of proof as far as undue influence is concerned. It’s not enough to show that what has happened is consistent with undue influence being exercised – you must be able to prove that there is no other explanation for what has happened. The case that most recently looked at undue influence and set out the elements of undue influence is Edwards v Edwards , a case in which a man who had been excluded from his mother’s will brought a claim challenging the validity of his mother’s will on the grounds that his brother had exerted undue influence on their mother to achieve this result. In summarising the elements of undue influence, the judge said:

  • There is no ‘presumption’ of undue influence – so whether there has been undue influence is a question of fact in each case.
  • It is up to the person claiming undue influence to prove that this is the case, rather than the person accused of the undue influence having to disprove it. It is up to the claimant to prove that there is no other explanation or conclusion that can be drawn, so this is a high burden to overcome.
  • For there to be undue influence, the coercion or fraud that has brought about the situation must have actually overruled the wishes of the testator – if the influence has simply confirmed what the testator might already have been intending, this is not enough.
  • Equally, it is not undue influence if the testator’s judgment is changed – so that he or she is persuaded that he or she is doing the right thing in making the will. It is when the will does not reflect the true wishes of the testator and this has been brought about through pressure.
  • Undue influence is not the same as fraud – by which we mean the fraud of someone telling lies about someone else to the testator with the aim of poisoning the testator’s mind against that person. This is ‘fraudulent calumny’, which we will look at in another blog.
  • Finally, when determining whether someone has made their will under undue influence, it is not a question of whether the will is ‘fair’ but whether the testator was able to make the will freely.

Although it can be difficult to prove undue influence, it’s not impossible, and in another blog, we will look at some examples of circumstances that have (and have not) amounted to undue influence. Ultimately, it will depend on the circumstances in every individual case. If you feel that someone close to you has been pressurised into making a will that does not reflect their true intentions, you need to seek legal advice quickly. We’re happy to help – just get in touch!

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Reasons to use a will dispute expert

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The importance of choosing an expert in probate and litigation work when you’re thinking of disputing a will.

You may be considering bringing a challenge to a will – and if you are, it’s important to use a will disputes expert, a point that was recently highlighted in the case of Lyons & Anor v Kerr-Robinson

The Facts

Cynthia Lyons died intestate leaving property in Jamaica and England. She had no family. There were competing parties for the grant of Letters of Administration, but despite Caveats being issued, the Letters of Administration were granted to the defendant, Andrene Kerr-Robinson. Kerr-Robinson then engaged a firm of licensed conveyancers to defend herself against claims from the other potential beneficiaries of the deceased’s estate. This firm had no probate experience, and no experience in litigation. Kerr-Robinson went on to transfer over £85,000 from the estate to the firm, which was later moved by the firm into the office account and was used to pay the firm’s bills.

Finding that the defendant should repay the money, the judge found that

  • Kerr-Robinson had not behaved properly in engaging a firm that was not authorised to conduct litigation on behalf of the estate.
  • She also did not act reasonably because she agreed to a retainer without placing a cap on fees and charges
  • She took no steps to keep an eye on what was happening to the money.

Choosing the wrong solicitor can cause big problems

In this case, the decision to use a firm of licensed conveyancers more used to dealing with property sales than with disputes arising out of inheritance and intestacy put the Adminstrator, Andrene Kerr-Robinson, in an extremely difficult position. Not only did she transfer money resulting in the monies being used for the wrong purpose, she failed to keep an eye on what was happening to the monies. If she had chosen a firm of solicitors whose expertise was litigation and will disputes law, it is far less likely that she would have been held responsible in this way.

In other will dispute claims, for example if you are seeking to overturn a will on the grounds that it is invalid for some reason, there is even more reason to use an expert. This is a complex area of law and it can be difficult to prove that something untoward has gone on – such as the preparation of an invalid will. Unless you use an expert, you may receive poor advice as to the strength of your claim, the evidence you might need to prove your claim, or you may receive incomplete advice about whether to settle a claim or pursue litigation to court.

A question of experience & expertise

It’s not as unusual a situation as you might imagine– you have a legal problem, so you approach a solicitor. But it’s important to make sure you use the right solicitor, one who is experienced in the area of law that covers the issue you want to resolve.

If you suffer from arthritis, you would not consult a brain surgeon. Although the brain surgeon will have had the same initial medical training as a rheumatologist, it’s only by seeing the rheumatologist that you will access the most up to date treatments and therapies and receive the best treatment for your condition.

The same is true of solicitors. Although we have broadly the same initial training, during which we may experience different areas of legal practice, we usually specialise in one area of the law once we have become qualified. At this stage, we will concentrate on broadening our knowledge and building our experience in this one area. And while we may not forget what we learned in law school and during training, our knowledge of other areas of law will never be as up to date as our knowledge of our specialist area.

The intricacies of will dispute law

Property law, employment law, personal injury, will disputes – each area of law has its own rules and procedures, its own set of ‘case law’. Although there may be some similarities, for example in the processes that must be followed when bringing a claim to court, you will find that unless you choose a solicitor who specialises in the area you need, you risk an unfavourable outcome, however strong your case may be.

The law which relates to will disputes and associated matters such as trusts and the duties of executors is a complex and changing area. As in other areas, the law relating to will disputes is made up of a combination of legislation (Acts of Parliament) and case law. Some of the legislation is quite old – for example, the Wills Act 1837 which sets out the requirements for a valid will. Case law is essentially the current state of play as the courts interpret legislation and legal rules, putting ‘flesh on the bones’ of the Acts of Parliament.

Using an expert will help you navigate the complexities of the law and reach the best outcome.

 

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Will I have to pay costs if I don’t challenge a will

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A lesson learned for those who force an estate to take action to prove a will, but have no reasonable grounds to challenge the will and take no steps to do so.

In most cases where someone wants to have a will ‘proved’ but does not bring an active case to challenge the validity of the will themselves, a ‘no costs’ rule applies. An exception is when the court decides that there were no reasonable grounds for challenging the will. In the case of Elliot v Simmonds, a woman who raised concerns about a will but then effectively ‘did nothing’, forcing legal action to prove the will, was ordered to pay £65,000 in costs.

The Facts

The will concerned, made in 2012, named the deceased’s partner, E, as the beneficiary. This overrode an earlier will in which an illegitimate daughter of the deceased, ‘S’, had been left a substantial legacy. S was upset by this turn of events and entered a caveat against the will, and then raised various objections and challenges to the will in correspondence. She did not actually bring a claim. Eventually, the executor brought legal proceedings to confirm the validity of the will. S continued to maintain that she would bring a challenge to the will – but this never actually materialised. The will was proved and the caveat lifted, so probate could go ahead, but E had incurred significant costs as the result of S’s behaviour, and brought a claim for costs against S.

Although cases which are not actively defended in these circumstances do not normally lead to costs awards, the judge agreed with E that S ‘had no reasonable grounds’ for opposing the will under the Civil Procedure Rules. The judge concluded that

  • the deceased did not have to leave an explanation for the change of heart in the 2012 will – it had no bearing on his capacity to make a will
  • although there were some regrettable gaps relating to the actions of the solicitor who made the will, he was the deceased’s brother in law and a good friend, and was in a good position to know the deceased’s state of mind
  • S had all the documents in her possession in June 2013 which would have allowed her to make a decision that she did not have reasonable grounds to bring her case, but she did nothing and allowed proceedings to continue and costs to rise.

No reasonable grounds

S argued that she did have reasonable grounds to contest the will. She said that there was no reason for her father to have made a new will which effectively disinherited her. She supported this argument with an assertion that the solicitor involved in making the will had not kept detailed attendance notes, nor had he followed ‘the Golden Rule’ of seeking medical evidence about the deceased’s mental capacity. S mentioned that there had been an occasion where the deceased had forgotten that he had made an earlier will, and said this should have alerted the solicitor.

The judge did not agree with any of these arguments. Ultimately, he felt that there was no basis for any challenge to the deceased’s will, and S should have known this in June 2013, 18 months before the legal action to prove the will was commenced.

Feeling aggrieved is not enough

This case highlights the importance of properly assessing whether you have real grounds to challenge a will. Simply feeling aggrieved that you have been left out of a will, even if you had previously been anticipating an inheritance, is not enough to bring a claim. There need to be reasonable grounds that the will is invalid. It also highlights the willingness of the courts to order costs if they feel that a party has acted obstructively.

Legal action to challenge a will can be costly in any circumstances. To pursue a will dispute in this way when you have no grounds to do so can result in a heavy legal bill, so taking legal advice about the strength of your claim is a sensible step to take.

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Charities fight back to claim bequests

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Later this month, the Supreme Court is set to consider provisions in the Inheritance (Provision for Family and Dependants) Act 1975 as charities seek to preserve their bequests following a ruling in favour of the testator’s estranged daughter.

There have been a number of high profile news stories regarding will disputes and inheritance issues hitting the press recently. However, later this month, the Court of Appeal is set to consider a case that has been in the news despite a lack of celebrity involvement or vast sums of money. Let’s look at the story so far in Ilot (Respondent) v Blue Cross and others.

The Facts

The testatrix left her entire estate to a number of animal charities, and made no provision for her estranged daughter. The testatrix had no connection with the charities and the estrangement had arisen because the testatrix did not approve of her daughter’s behaviour leaving home and marrying a man she did not approve of. The daughter said that she did not expect to be left anything in the will, but brought a claim under the Inheritance Act for ‘reasonable financial provision’.

  • The daughter was originally awarded £50,000 but appealed and the Court of Appeal increased the award to allow her to buy her housing association house (£143,000) and awarded an additional £20,000, structured in a way that would allow her to retain her state benefits;
  • The Court of Appeal found that the mother had acted in an unreasonable capricious and harsh way towards her daughter. The fact that the daughter had no expectation of being recognised under the will did not have any bearing on the amount she should receive as ‘reasonable financial provision’ (something the court had found at the first hearing).
  • In approaching the question of the standard of ‘maintenance’ under the Inheritance Act, the Court of Appeal first looked at whether the daughter’s standard of living was sufficient. The provisions are not there to provide an improved standard of living, but the court should not be limited to ensuring a ‘subsistence’ level.

The Questions for the Supreme Court

The charities involved, the Blue Cross, the RSPCA and the RSPB are obviously motivated by a desire to ensure that they are allowed to keep monies that will help them continue their charitable work. They see it as vitally important to gain clarity about how the provisions in the Inheritance Act should be applied in these circumstances. Resolution will also be helpful for individuals seeking to leave bequests to charity at the expense of family members and dependants who might otherwise have a claim under the Inheritance Act.

The questions for the Supreme Court relate to the Court of Appeal’s decision to set aside the original award of £50,000 as being too small; to the Court’s approach to the ‘maintenance’ standard’ and finally, whether the Court was right to structure the award to Mrs Ilot so that her state benefits were preserved.

Of course, the case also raises important questions about the extent to which people may be able to use the Inheritance Act in future to override the wishes of a testator who has left bequests to charity. There is also a question over whether the Court of Appeal would have been so generous if Mrs Ilot had been in employment and was able to support herself. The Court also suggested that because Mrs Ilot had not wanted to be estranged from her mother, the estrangement was a less relevant factor in the overall scheme of factors that had to consider.

We will be watching the case carefully and will bring you more news once we have the judgement!

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Contesting a will – what are the risks?

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You may feel aggrieved by your inheritance, or feel that your loved one’s will should not stand – but what are the risks of contesting a will?

Your loved one has died, and taking legal action may be the last thing you want to think about, but if you feel that the will doesn’t reflect the true intentions of the deceased, or that you will struggle financially in the future as the result of the way the estate is to be divided, this is a step you may have to take. Many people look at the likely positive outcome that may come from contesting a will, but taking this kind of legal action does have its risks.

  1. You are not close enough to ‘have an interest’ in the estate

The law makes it clear that only people who have an interest in the estate can challenge a will. And until recently, this was thought to be people who would benefit under the intestacy rules, had the deceased died without leaving a valid will. As we recently reported, the case of Randall v Randall suggests that there may be scope for widening the group of people who can bring a challenge to the validity of a will.

  1. Not enough evidence to succeed

Challenging the validity of a will is quite a hard case to put together. In most cases, provided the will is signed and witnessed, there is a presumption that the will is valid. Coupled with this, the person who knows best what he or she was thinking when they made the will, who can give evidence about any pressure they were subjected to at the time the will was made is, to put it plainly, no longer with us. If you are seeking to challenge a will, you will need to construct a case using evidence that might be available: documents and witness statements from people who are prepared to support your claim. Although there is no time limit preventing you from bringing a claim, the longer you leave it, the harder it will be to track down this evidence.

  1. You may end up in a worse position than if the will stands

Before you contest a will, it makes sense to work out what the conclusions will be if you succeed. If you are challenging the validity of a will, and successfully persuade the court that the will should be set aside, how will the estate be divided up? Is there an earlier, valid, will that can cover the estate? Or will the intestacy rules apply? You need to consider carefully what the consequences of your challenge will be – you could end up worse off!

  1. Expensive legal fees

As with any legal action, bringing a claim disputing the validity of a will can be expensive, involving solicitors’ costs and court fees. There is no provision for Community Legal Service funding (what used to be known as legal aid), and many insurance policies which cover legal fees exclude these kinds of claim. If this is the case, you will be looking at funding your claim yourself. An alternative is to enter into a ‘no win no fee’ arrangement with your solicitor. These arrangements mean that you will only pay legal costs if you win your claim. Further, those costs can, in most cases, be recovered from the other side, making this a good option if you are considering contesting a will.

  1. Paying the other side’s costs

If you lose your case, you may end up having to pay the costs of the other side. If you bring a claim that is ‘mischievous’ or in circumstances in which you don’t have good evidence to support your claim, you may end up facing a large legal bill – a situation recently highlighted in the case of Elliot v Simmonds. If you are thinking about challenging a will, it’s always worth taking legal advice from a specialist firm of solicitors about the strength of your claim and the potential costs consequences of taking legal action.

There are lots of factors, and risks, that need to be weighed up before embarking on legal proceedings to contest a will, and it’s undoubtedly a stressful step to take. We can discuss how you will fund your claim, and guide you through the legal maze to help you identify whether you have a good case. We’ll also talk you through what will be involved and the evidence that will be needed to secure a good outcome. Give us a call on 020 3322 5103 to find out how we can help you.

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Lewis v Warner looks ta reasonable financial provision under the Inheritance Act where a common law spouse has his own independent means

Reasonable Financial Provision – Lewis v Warner

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Can the Inheritance (Provision for Family and Dependants) Act 1975 help someone who is able to provide for themselves?

We look at the case of Lewis v Warner, in which a common law partner who sought to purchase the house where he had lived for the last 20 years and avoid eviction by the sole beneficiary of his deceased partner’s will.

The Facts

The deceased had left her entire estate – primarily consisting of a property – to her daughter. The deceased’s partner, aged 91 at the time, had lived with the deceased ‘as husband and wife’ in the property since 1995. The daughter applied for a possession order so that she could sell the house. The partner, in turn, brought a claim for reasonable provision, under the Inheritance Act 1975, seeking to be able to buy the house. He was granted an option to purchase the house for £385,000.

The daughter appealed against this, but was unsuccessful. Although the partner had his own financial resources, the appeal court found that

  • Even though the partner was financially well off, the fact of his age and health meant that it was not ‘reasonable financial provision’ for him to face eviction following the deceased’s death.
  • While another judge might have reached a different conclusion, that did not make the conclusions of the judge who had heard the case wrong
  • Despite an argument to the contrary, the judge did have the power to order the property to be transferred to the partner for full market value

Can ‘a roof over one’s head’ amount to maintenance?

The original judge found that ‘the maintenance of a roof over the head of an applicant’ could come within the meaning of ‘maintenance’ in s.1(2)(b) of the Inheritance Act 1975. There was a financial value to this – the value of funding alternative accommodation – and so by not providing for the arrangement to continue in the will, the deceased had failed to make reasonable financial provision for her partner.

On appeal, the daughter argued (through her legal team) that the partner had sufficient financial resources to secure somewhere else to live, and the fact that he wanted to stay where he was to avoid stress and upheaval did not mean it was unreasonable that the will did not allow him to stay in the property. However, the appeal court felt that there could be exceptional cases where ‘maintenance’ – which has not been strictly defined – could cover wider matters than the ‘costs…of daily living’ and could include other forms of assistance with day to day life. In this case, the partner’s age and medical needs, and the likely consequences of him having to move, could all be part of the equation.

Transferring something for full market value

What is interesting about this case is that the deceased’s partner had his own financial resources, and made no claim on the estate per se – he had his own funds and sufficient money to purchase the house at the centre of the dispute. He simply did not wish to move from the property where he had (it is reported) ‘spent the happiest 20 years of his life’ with the deceased. It seems that the daughter was not opposed to selling the house to the partner, only that she should receive what she believed to be ‘full market value’ of the property. It seems they disagreed over what this might be, which led to the legal proceedings.

Obviously, this is quite an unusual case: claims for maintenance under the Inheritance Act 1975 tend to be brought by people who do not have the means to support themselves otherwise. Normally, a successful claim of this type would mean the estate would be transferring value to the applicant. In this case, there was a transactional element which essentially maintained the status quo, with no one being worse off. However, despite the unusual circumstances, this case does offer hope for someone where more is at play than straightforward finances. If you’d like to discuss whether you might have a claim under the Inheritance Act 1975, why not get in touch?

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Intestacy – can I challenge the rules?

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We talk a lot about how to challenge a will, but what happens if someone dies without making a will? In this blog, we look at the intestacy rules, how they work in practice, and your options if you aren’t included.

A number of high profile personalities have passed away recently without leaving a valid will, meaning that the intestacy provisions have received quite a lot of publicity. Rik Mayall, the actor, died suddenly and unexpectedly. Perhaps he was intending to make a will, perhaps not, but the result is that his family will receive his estate in accordance with a set of rules that were updated in 2014. So what are the intestacy rules – and can they be challenged?

Dying ‘intestate’ – what does it mean?

As we’ve already mentioned, dying intestate means that there is no will – or no valid will – which sets out the wishes of the deceased regarding how he (or she) wishes his property to be divided up on his death. In these circumstances, a set of rules, commonly known as ‘the intestacy rules’ will apply, dividing the property up in a set order, depending on which of the deceased’s relatives are still alive. While there may be cases where the intestacy rules apply with no problems, in many other situations, the rigid application of the rules can cause difficulties.

How do the Intestacy rules apply?

When someone dies intestate in England or Wales, the estate of the deceased is divided according to a strict order. There’s a helpful flow chart on the government’s website,which takes you through the steps but essentially, the order is as follows:

  1. Spouse/civil partner.
    • How much you will receive as a spouse/civil partner depends on whether there are any surviving children, and the value of the estate.
    • Where the estate is worth more than £250,000, the spouse received personal possessions plus the first £250,000.
    • If worth less than £250,000, the spouse receives everything.
  2. Children.
    • Depending on the value of the estates and whether the deceased is survived by a spouse/civil partner, children are next in line.
    • Children receive an equal share of anything over £250,000 if there is a spouse, or an equal share of the entire estate if there is no surviving spouse.
    • ‘Children’ includes children from all the deceased’s relationships, and any child that has been legally adopted.
    • Children inherit when they reach the age of 18 or if they marry or enter a civil partnership before the age of 18
  3. Grandchildren/Great-grandchildren.
    • Where a child of the deceased who would have inherited under the intestacy rules is already dead, their children (the deceased’s grandchildren).
    • This flows down to apply to great grandchildren if there is no one else to inherit
  4. Other relatives
    • If no spouse or children survive the deceased, the estate is split between surviving relatives, again according to a predetermined order
    • The order gives primacy to surviving parents, after which siblings (or their children) will inherit, followed by any half siblings, your grandparents, your aunts and uncles and finally any half aunts and uncles.
    • If you die without a will and none of these relatives survive you to receive your property, the estate will pass to the Crown.

What don’t the intestacy rules cover?

So far, so clear, but what happens if the intestacy rules mean you are left with nothing in what seems to be unfair circumstances. For example, a common law partner where the relationship has not been formalised, will receive nothing. There is no provision for step-children (unless you have adopted them), regardless of how long you have looked after them or how much financial support you provide them. You may have known that the deceased wanted to make provision for someone who cared for them, for a good friend, a charity. He or she might even have wanted to make provision for the care of a pet which survived them. None of these intentions will be fulfilled under the intestacy rules.

Can I challenge the intestacy rules?

Although there is no ‘challenge’ to the intestacy rules in the same way that you can challenge a will, someone who feels that the deceased might have left them provision had they made a will can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision. A claim under the Inheritance Act could be a possibility for a common law spouse who receives nothing in favour of the deceased’s children. It could also help someone who was treated as a child of the deceased (for example a step child) but there was no legal adoption. Finally, someone partly or wholly dependant on the deceased immediately before the death, may bring a claim for financial provision. Strict time limits apply – a claim must be brought within 6 months of the ‘Letters of Administration’ (which allows the distribution of an estate under the intestacy rules) being granted.

Agreeing to vary the Intestacy rules

Another way of inheriting when the intestacy rules don’t cover you is if those people who are entitled to a share of the estate agree to a different division of the estate.  In this case, the beneficiaries of the estate can apply for a deed of variation, or a deed of family arrangement to change the way the estate is divided to include other people – for example step children who weren’t adopted, or a common law partner. Such an application needs to be brought within 2 years of the death.

Need more information?

If you’re worried about your position following the death of a loved one, and no will seems to have been made, taking some legal advice may help you work out what to do. We can talk to you about your options and determine the best way forward given your circumstances. We can usually act on a ‘no win no fee’ basis too, which means the costs of any legal action may not be as high as you thought.

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Contesting Wills – the Practicalities

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You may feel aggrieved by the provisions of a will – but what are the practicalities of contesting wills in the UK?

In the wake of the death of a relative, a close friend, there are many things to contend with, not least your grief. Notwithstanding how difficult the weeks and months that follow, there are many practical steps that need to be taken when someone close to you has died. Disputing the will may not be at the top of your list, but in certain circumstances, it may become apparent that this is necessary. Here we take some time to look at the practicalities of contesting wills.

Do you have ‘an interest in the will’?

If a will is to be contested, there are only a certain number of people who will be able to contest a will. These are broadly defined as people with ‘an interest in the will’ and usually correspond with the people who would inherit if the testator (the person who made the will) had died without making a will at all. The intestacy rules include the testator’s spouse, and children, his or her parents, and then more remote blood or adoptive relatives. More recently, the case of Randall v Randall found that the ex-husband of the testator’s daughter had sufficient interest to challenge the will.

Can you afford to challenge a will?

You may be concerned that taking legal action to seek justice may be too expensive for you to continue. While legal proceedings can be costly, we are usually able to offer our services on a no win no fee basis which means that you will have nothing to pay if your claim does not succeed. If your claim does succeed, we will seek to recover your legal costs from the estate or from the person who opposed your claim.

What will you gain from contesting a will?

If you bring a claim to contest a will, you will be challenging the validity of the will in its entirety. If you win your claim, the end result is that the will is set aside, and the estate concerned will be distributed according to the most recent previous will that was made – or, if there is then no will, according to the intestacy rules. This may mean that you are worse off than if the will stands. It’s worth taking legal advice about what the position will be should your claim succeed.

Have you left it too late to contest a will?

Depending on the type of claim you are thinking of bringing, certain time limits apply.  A claim for maintenance under the Inheritance (Provision for Families and Dependants) Act 1975 has to be brought within 6 months of the grant of probate. It may, in some cases, be possible to extend the time limits, but this is not something you can rely on. Other claims, challenging the validity of the will don’t have a fixed time limit. However, the longer you leave a claim, the less likely it will be that you will be able to gather sufficient meaningful evidence to construct a strong case. In addition, the estate may have been distributed and the assets dispersed. For these reasons, it is always important to act without delay.

Do you have sufficient evidence to contest a will?

You may have a strong suspicion that all is not as it might seem as regards the will concerned, but without any evidence, you will find it very hard to succeed in your claim. In many cases, there is a ‘presumption’ that the will is valid, so there needs to be strong evidence to defeat this presumption and have the will set aside. We looked at the evidence you need to contest a will in this recent blog.

Taking the decision to contest a will is one that must be made carefully, looking at all the factors in play, and with the benefit of sound legal advice. If you are considering your position following the death of a loved one, we can talk through the issues with you, help you understand whether you may have a claim, and how likely it is to succeed.

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Inheritance Act – reasonable financial provision

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We look at what constitutes reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975  following the case of Wooldridge v Wooldridge

The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) gives dependants a mechanism to claim ‘maintenance’ – beyond what they may already have been left under the will concerned – from the estate of the deceased. But what amounts to reasonable financial provision will differ depending on the circumstances of the person making the claim.

The Facts

Thandi Wooldridge’s husband was a successful business man who died in a helicopter crash in 2010. His home was worth £4.25 million, and he left life insurance policies worth in the region of £1.6 million, plus his business interests. Mrs Wooldridge also received compensation in the region of £1.9 million following the death of her husband. Mr Wooldridge’s homemade will left the home and the benefit of life insurance policies to his wife, but the will divided his business interests and the benefit of another life insurance policy between his sons. In 2012, Mrs Wooldridge began a claim under the Inheritance Act for an additional £375,000 a year because the assets she had been left in the will were not sufficient to maintain the standard of living she had become accustomed to.

Mr Wooldridge’s older son defended the claim, arguing the budget his stepmother set for herself was unrealistic and did not match what she was spending. He also argued that to allow Mrs Wooldridge’s claim would undermine the business interests that his father had built up and left to his sons. The judge agreed with Mr Wooldridge’s son. She found that Mrs Wooldridge had not established that the will “failed to provide her with sufficient financial provision to meet her needs”. She found:

  • Mrs Wooldridge’s ‘budget’ was more like a wish list rather than an accurate assessment of her needs
  • The assets which had been left for Mrs Wooldridge were not being invested properly to provide an income for the future
  • To increase the provision for Mrs Wooldridge would reduce the profitability of Mr Wooldridge’s company would be significantly reduced and have a direct impact on Mr Wooldridge’s sons.

An objective test

What constitutes a reasonable financial provision will be looked at objectively by the courts, but often causes a great deal of difficulty. It’s also interesting to note that despite the difficulty in establishing what this might be, in most cases, the court will grant a spouses claim for maintenance under the Inheritance Act. It’s common practice for the courts to look at what a spouse might have received had the testator survived and the couple had divorced. The ‘divorce cross check’ has led to a convention that a person may expect to receive around 50% of the spouse’s estate

Of course, many people considering a claim for reasonable financial provision (or ‘maintenance’) under the Inheritance Act will be living in far more modest circumstances than Mrs Wooldridge. The ‘budget’ that she presented to the court in making her claim, included £65,000 for holidays, £21,500 for “going out (meals, theatre, polo events etc.)”, £79,000 for social events, clothes, jewellery, personal care and general entertainment and £58,000 to cover transport costs, including the upkeep of a Bentley and Range Rover. She also listed £155,000 which she anticipated needing to purchase a Bentley. For most of us, this will seem like a huge list of expenditure, particularly given the assets she had already been left under the will.  However, that of itself would not mean that Mrs Wooldridge’s claim was bound to fail.

There are limits to reasonable financial provision

It is thought that this is the first case in which the courts have refused a spouse’s claim for maintenance, and serves as a reminder that despite past cases, the courts will not simply ‘sign off’ a spouses claim for maintenance. Each case will be decided on its own circumstances focussing particularly on the financial needs and resources of the person making the claim, the other relevant beneficiaries, and the size and nature of the estate.

There are strict time limits that apply to bringing a claim under the Inheritance Act, so if you are thinking of bringing a claim it is vital to take early legal advice about the strength of your claim and what you may expect to receive if your claim is successful. We offer a free claim assessment, and if you decide to proceed, we can usually act on a no win no fee basis.

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What evidence do I need to contest a will?

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The grounds to challenge a will

There are specific grounds on which you can challenge a will as being invalid. We’ve covered them before, but it’s always worth repeating. Briefly, you are looking at the following:

  • the ‘mental capacity’ of the person making the will (the ‘testator’),
  • whether there was ‘undue influence or coercion’,
  • lack of ‘knowledge or approval’ of the contents of the will by the testator,
  • whether the will satisfies the requirements of the Wills Act 1837, and
  • whether there was fraud or forgery.

You may have a suspicion that all is not as it seems, but do you have the evidence necessary to contest a will?

Taking the decision to challenge a will isn’t an easy thing to do. However, if you are concerned that the will of your loved one is invalid for some reason, this may be the right thing to do. However, challenging a will isn’t always straightforward, so in this blog, we look at some of the evidence you might need to successfully challenge a will.

Evidence that a will is invalid

Of course, it maybe that the first time you become worried about the will in question is after the person has died and you discover that it contains provisions that give you cause for concern. At that point, the best evidence – from the person who made the will – is no longer available. Without the direct testimonial of the testator, there are other forms of evidence that can help you build a successful case to challenge the validity of the will concerned.

Letters and other documents

You may not be able to speak directly to the testator to establish what was going on at the time he or she made the will you are looking to challenge, but there may be other documents that reflect his or her intentions, state of mind or other concerns at the time the will was made. A diary that was kept by the testator can potentially reveal a number of things relating to different types of challenge. It could reveal the state of mind of the testator. It could mention bullying or other behaviour by a person in relation to making the will in a particular way. It could also reveal what a testator’s true intentions were in relation to how his or her estate should be distributed.

Medical notes

Particularly relevant if you are seeking to contest a will on the grounds that the testator did not have mental capacity to make the will. Medical notes may reveal whether or not the testator was suffering any illness or condition at the time he or she made the will, and the extent to which this condition might have impacted on the testator’s understanding of what he or she was doing.

Witness statements

Another important piece of evidence will be the witness statements of people who knew the testator at the time the will was made – and beforehand. Examples of useful witnesses will include

  • The solicitor who drew up the will
  • The people who witnessed the will
  • People involved in the care of the testator (if relevant) at the time the will was made
  • People who knew the testator and can talk about his or her state of mind when the will was made, what their behaviour was like
  • People who have known the testator in the past and could give evidence about the testator’s intentions regarding his or her estate.

In a recent blog when we looked at a challenge to a will brought on the grounds of mental capacity, which ultimately failed, the judge found evidence from people who had holidayed regularly on the testator’s farm helpful: this was evidence that the testator had regularly referred to her intention to leave her farm to her son – an intention that was born out in the will that was being challenged. The exact evidence that will be necessary to challenge a will always depends on the particular circumstances and the particular grounds on which you are contesting the will.  Your specialist legal adviser will be able to discuss the circumstances of your claim and talk to you about the kind of evidence that will be helpful.

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Left without an Inheritance? What can you do?

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If you’ve been left without an inheritance, what options do you have to challenge a will?

There have been a number of high profile examples of people challenging a will because they feel they feel cheated of their inheritance. Not only that, a number of high profile figures have announced that they will not be leaving an inheritance for their children: Anita Roddick of the Body Shop, cook and writer Nigella Lawson, Sir Elton John, Andrew Lloyd Webber have all publicly expressed their intention that their children will need to stand on their own two feet and not rely on an inheritance. Admittedly, dig deeper, and it doesn’t appear that their offspring will be left with nothing under the terms of their high profile parents’ wills, but should that be the case, or should they feel they haven’t been left ‘enough’, what can they do?

Challenging a will

If you feel that you have missed out on an inheritance, that you should have been left something in a particular will – may be your parents, a grandparent, or someone who treated you like a child or grandchild, one option open to you is to challenge the will on the grounds that it is somehow invalid and does not accurately represent the wishes and intentions of the person who made the will (the ‘testator’).

If you challenge a will in this way and succeed, the result will be that the will is declared invalid, and the inheritance will then be distributed according to the most recent will that exists before the invalid one, or according to the rules of intestacy if there is no other will. It’s always important to establish what would be the result if you are successful when you challenge a will – if the result would be that you would be worse off than under the will you are considering disputing, then a challenge would be counterproductive.

There are very specific grounds on which you can challenge a will, including:

  • Did the testator have ‘mental capacity’ to make the will?
  • Did the testator ‘know and approve’ the contents of the will?
  • Was the testator placed under ‘undue influence’ to make the will?
  • Was the will validly signed and witnessed?

You will need to take specific advice about the basis for your challenge, and what the outcome could be.

Claiming Maintenance under the Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) makes it possible for someone who feels they haven’t been left an inheritance but should have received something, or who has been left an inheritance but doesn’t feel they have been left enough, to make a claim for ‘maintenance’. Crucially, this type of claim does not involve a challenge to the validity of the will itself, it merely examines how the testator’s estate has been distributed under the will, and if necessary makes changes to that distribution.

The Inheritance Act sets out who can bring a claim for maintenance, and the claims can only be for ‘reasonable financial provision’. Essentially, there is also a balancing act to be carried out looking at the needs of the person bringing the claim and those people named as beneficiaries in the will. You can’t take action before the testator has died – so should the children of Lawson, Lloyd-Webber et al feel aggrieved at their parents’ stance the only action they can take at this stage is to retain papers and any other evidence about your financial position that might be useful following the death of their parent. Indeed, we would hope that these provisions have already been discussed with the children concerned!

When looking at ‘reasonable financial provision’, the courts will look at a number of factors, including:

  • The financial resources and needs the applicant – and any other applicant – has or might have in the future
  • The financial resources and needs of any beneficiary of the estate under the will
  • The obligations the testator had towards any applicant under the Inheritance Act, and towards any beneficiary
  • The size of the estate
  • Any disabilities affecting the applicant
  • ‘Any other relevant circumstances’

Claims under the Inheritance Act must be brought within 6 months of the grant of probate, and although this time limit can be extended in exceptional circumstances, it is usually strictly observed, so taking advice and action early is important.

In either case, whether you want to challenge the validity of a will, or bring a claim for maintenance under the Inheritance Act, it is important to take legal advice early on. We can provide a free assessment of your claim, and if you decide to proceed, we can handle most such claims under a ‘no win no fee’ arrangement. Get in touch to find out more: call 020 3322 5103 or use our online contact form.

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Am I too late to bring a claim for maintenance under the Inheritance Act 1975?

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As unpalatable as it may seem following the death of a loved one, if the deceased’s will does not make provision for you, you will need to act quickly to bring a claim for maintenance under the Inheritance (Provision for Family and Dependants) Act 1975.

In the aftermath of the death of your spouse or parent, the last thing that might be on your mind as you plan a funeral, deal with the administration that comes hand in hand with death is legal action challenging your loved one’s will. However, if the will does not make adequate provision for you, you need to take action within legally defined time limits for contesting a will, or you will lose the opportunity to do so.

Inheritance Act Claim for Maintenance

The Inheritance Act (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’) allows certain individuals closely connected to the deceased to make a claim for ‘maintenance’ from the deceased’s estate. This is not a will dispute where the validity of the will itself is being challenged. It is challenging a will on the grounds that it does not make “reasonable financial provision” to certain members of the deceased’s family.

In this situation, a claim must be brought within 6 months of the grant of probate. The grant of probate is the point at which the will is effectively approved, and the executors of a will can distribute the assets amongst the beneficiaries of the will. Some executors will delay distributing an estate until 6 months have passed from the grant of probate to make sure there are no such claims before distributing the estate. Otherwise, a successful claim under the Inheritance Act may result in a redistribution of assets.

Inheritance Act claim where there is no will

When the deceased has died intestate – without leaving a will – his estate will be divided according to the intestacy rules which were updated recently. The current intestacy rules only make provision a deceased’s partner if they were married or in a civil partnership. If you are living with and were dependant on the deceased but received nothing under the intestacy rules because your relationship had not been legally formalised, you could make a claim for maintenance under the Inheritance Act. In this case, as in situations where there is a will in place, the claim must be brought within 6 months of the grant of probate.

Extending the Inheritance Act time limits

In certain circumstances, it may be possible to argue that a time limit for bringing a claim should be extended, but this is not a reason to delay seeking advice or bringing your claim if you have one. As we’ve seen, the strict time limit exists to give certainty to those dealing with the estate, and beneficiaries under the will. However, in limited circumstances, it may be possible to submit a claim after the 6 month time limit. Following the case of Berger v Berger, the questions a court will consider in relation to extending the time limit are as follows:

  • Had negotiations with the estate started before the end of the time limit?
  • Had the estate already been distributed before the defendants were aware of the claim?
  • Would dismissing the claim leave the applicant with no other remedy?
  • Would the applicant have an arguable case if the application were allowed to proceed now? and
  • Have previously unknown facts have come to light which provoke a claim?

It is important to stress that the courts are reluctant to allow claims outside the 6 month time limit. In the Berger v Berger case, the claim – by the deceased’s second wife, was brought some 6 years after the grant of probate.

Taking early advice from a professional will help you understand whether you do actually have a claim – and that the claim is worth pursuing – and the time limits that apply to contest a will in the manner that you are considering. With that knowledge you can then decide how to act, gather evidence and make your case with the help of your solicitor. We can offer a ‘no win no fee’ arrangement to work on most cases involving a will dispute. Why not get in touch to find out more?

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Can I contest a will?

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Can I contest a will? It’s a question we’re often asked, and a recent case considered the wider question of who has sufficient ‘interest’ to contest a will.

To challenge a will, you must be able to show that you have an ‘interest’ in the estate of the deceased person – usually close relative or someone who has been treated as such. In a recent case, Randall v Randall [2016] EWCA Civ 494 the courts decided that someone with a far more tenuous connection to the estate concerned could challenge the will, because without this legal avenue, he had no other way of seeking a solution to his problem.

Can I Contest a Will – The Facts

When a couple divorced, it was part of the divorce settlement that if the wife (W) inherited more than £100,00 from her mother (on the mother’s death), W would keep £100,00 and the remainder would be split equally with her ex-husband (H). In the event, the mother’s will left exactly £100,000 to W and the balance – estimated at £150,000 – to her grandchildren. H sought to challenge the will on the grounds that it was a forgery and had not been properly executed, but the High Court agreed with W that H did not have sufficient interest to bring the claim – he was neither a beneficiary under the will nor would stand to gain under intestacy rules if there were no will.

The Court of Appeal heard the appeal against this decision by H and decided that

  1. If H was unable to bring the claim, there would be no effective route for him to bring his claim against W and against the validity of the will
  2. The question of whether H did have an interest was a procedural matter rather than a matter of substantive law
  3. The Civil Procedure Rules have an overriding objective to ensure cases are dealt with justly and proportionately – and “justice in the general sense” required that H should be allowed to bring his claim.

Can I Contest a Will – An ‘interest’ in the estate

The facts of this case were fairly unusual. In general, the question of who has ‘an interest in the estate’ which would enable them to contest a will – for example on the grounds that it had not been properly executed, or that the deceased did not have mental capacity when he or she made the will – is fairly straightforward. The people who are likely to have an interest in a deceased’s estate, and would therefore take action to contest a will, are the immediate family – spouse or civil partner, children (including adopted children) and parents if they are still alive, and then more remote relatives – grandparents, aunts and uncles. These are essentially, the same people who would have inherited had the deceased not left a will and died intestate.

If there is an earlier will in existence, which differs to the most recent will, people who might have benefited under the earlier will but are left out of the most recent will may try to contest the will. Equally, someone who was promised something by the deceased when he or she was still alive, but this is not mentioned in the will as a specific gift, or is given to someone else in the will, may bring a challenge.

Can I Contest a Will – A pragmatic approach to an ‘interest’

In Randall v Randall, the Court of Appeal indicated its willingness to take a pragmatic approach to the question of who has an interest in an estate, and hence who can contest a will, to ensure that justice is done.  It isn’t yet clear whether this case will have wider repercussions, but it’s interesting to note that the judge found that if the challenge was being brought in the general jurisdiction of the court (not under the probate jurisdiction) he would certainly have had an interest – H was “not a mere busybody. He [had] a real interest in challenging the validity of the will”.

Ultimately, the question of whether you have sufficient interest to challenge a will depends on the facts and on your relationship with the deceased. As difficult as it may seem, your best approach is to take specialist legal advice early on to establish whether you can contest a will, and your prospects of success.

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The (almost) A-Z of a will dispute

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Will dispute? Confused by legal jargon? Our blog should help make things clearer!

The law that applies in the case of a will dispute is full of technical language, much of it deriving from years gone by, and often difficult to understand, even by lawyers who specialise in other areas of the law.  Our (almost) A-Z guide should help you get to grips with what’s going on – and if you’ve got any questions, get in touch!

Administrator (see also Letters of Administration)

If someone dies without leaving a will – ‘intestate’, their estate will be handled by Administrators – usually close relatives, who must apply for Letters of Administration to handle the estate and deal with its distribution

Beneficial Interest

A ‘beneficial interest’ – or simply ‘an interest’ in the estate is required before someone can challenge a will. People who are named in a will, or who would inherit under the rules of intestacy have a beneficial interest in a will, but the courts will occasionally allow someone with a slightly more tenuous connection to challenge a will, if justice requires it.

Caveat

If you have a concern about the validity of a will, you can enter a Caveat to stop the Grant of Probate and to prevent the estate being distributed while your claim is being considered.

Distribution

Distribution is the division of the deceased’s estate amongst the beneficiaries, in accordance with the will, or according to the Intestacy Rules. If you are worried about the validity of a will and wish to contest a will, you should enter a Caveat to prevent the grant of Probate and distribution of the estate.

Estate

The ‘Estate’ is the possessions, property, assets of the deceased, and also his debts

Executor (See also Probate)

When someone dies leaving a will, the chances are the will has appointed Executors to handle the estate and to oversee its distribution in accordance with the will. There are professional executors who can carry out these tasks, as the role of executor can sometimes be complicated and time consuming.

Fraud

There are a number of situations when a will can be challenged on the grounds that it is a fraud. Will fraud is increasingly common and can be hard to prove if the document is, apparently, signed, dated and witnessed. Will fraud can arise if a will is deliberately destroyed in order for an earlier will (or the rules of intestacy) to apply. Will fraud is also committed if the signature on the will is not actually that of the Testator, if the will was not in fact signed in the presence of the witnesses

Golden Rule

The Golden Rule is a rule that applies to solicitors drawing up wills for their clients in circumstances where there is a risk that the mental capacity of the Testator at the time the will is made may be challenged. In these circumstances, the Golden Rule is that the solicitor MUST take steps to make sure the Testator has the mental capacity to make a will – if necessary by obtaining medical evidence from a specialist.

Intestacy

When someone dies without leaving a will, they die ‘intestate’ and a series of rules – the Intestacy Rules – apply to govern the distribution of the estate.

Knowledge and Approval

When a will is properly signed and witnessed, the courts will presume that the testator ‘had knowledge’ of what was contained in the will, and ‘approved’ the contents of the will. If the will is drawn up in circumstances which “excite the suspicion of the Court” – for example if it is drafted by someone who benefits under the will and the will is very complex, it may be possible to argue that the will was not executed with ‘knowledge and approval’.

Letters of Administration

When someone dies intestate – without a will – Letters of Administration must be applied for by someone willing to undertake the distribution of the deceased’s estate in accordance with the Intestacy Rules.

Mediation

Mediation is a process through which many will disputes can be settled. Mediation uses the services of a professional mediator – a facilitator who will listen to both sides of the case, challenge, negotiate and ultimately aim to bring both sides to a resolution. It is a far less formal process than court proceedings and does not involve the parties having to face each other in the same room when emotions can run high.

Mental Capacity

A Testator must have mental capacity to make a will. He or she must know what he is doing, and what the implications of the will are. It is the Golden Rule of will making that where a Testator is old, seriously ill, or otherwise vulnerable, the solicitor drawing up the will must be satisfied that that testator has the necessary mental capacity. If necessary, the solicitor should involve a medical expert.

No Win No Fee

The basis on which we at Willclaim Solicitors can handle most will disputes. ‘No win no fee’ is exactly that – if the claim is unsuccessful, we will not be paid. If the claim is successful, we will recover our costs – usually from the other side, and if not, from the share of the estate that you receive as a result of the claim.

Personal representatives

Personal Representatives are the people who have legal authority to represent and manage the affairs of the person who has died. In the case where there is a will, the personal representatives are known as ‘executors’. Where the individual died intestate, the personal representatives are known as ‘administrators’.

Probate

Probate is a process by which a will is determined to be valid. Once the process is complete, assuming there are no problems, a grant of Probate will be made to the Executors who can then administer the estate.

Risk

As with any legal action, it’s important to weigh up the likelihood of succeeding against the risks of bringing a case. One risk to consider before bringing proceedings is whether you will be in a better or worse position should you be successful. If you are challenging a will, and succeed, meaning that there is then no will, and the rules of Intestacy apply, where will that leave you?

Settlement

A settlement is what is reached if the parties involved in the will dispute can agree the outcome without going to court. Mediation is often instrumental in achieving a settlement.

Testator

The Testator is the person who has made the will. He or she should be over 18, and must know and appreciate what they are doing

Undue Influence

While it is difficult to prove, if there is evidence to show that the wishes and intentions of a testator were entirely overridden by someone else and the testator was effectively forced into making a will that did not reflect the testator’s wishes, but the wishes of that someone else, then a will may be successfully challenged on the basis of undue influence.

Valid execution

Valid Execution relates to the process by which the will is made. The will must be signed by the Testator in the presence of 2 witnesses who must then themselves sign the document.

Will

Last but by no means least – the Will. It’s fundamental (of course) to all these claims – they are ‘will dispute’ claims after all, so there needs to be a will. A will is a legal document by which the Testator sets out who is to inherit his or her property and in what order. To be binding, the will must have been validly executed.

Got any questions? Get in touch using our email contact form, or give us a call 020 3322 5103

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Delusions and dementia – sufficient evidence to contest a will?

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Following a recent High Court decision, we look at the evidence necessary to contest a will on the grounds that the person making the will did not have the mental capacity to do so.

One of the grounds for contesting a will is to argue that the person making the will, ‘the testator’, did not have mental capacity to do so. This is often referred to as ‘not being of sound mind’, and comes down to the question of whether the testator was able to understand, and did actually understand, the contents of the will and what the implications of the will were. Challenging a will on these grounds can be tricky, and, as this case shows, will very much depend on the evidence available.

The Facts

In the case concerned (Lloyd v Jones & Ors [2016] EWHC 1308 (Ch) (02 June 2016)), a woman sought to contest a will made by her mother which dealt with the mother’s farm in West Wales. The will included a £10,000 legacy for the daughter. The balance of the estate, the farm which the testator farmed in partnership with her son and his wife, and which was worth around £600,000, was left equally to the son and his wife.

Despite the evidence brought by the daughter that, by the time the testator made the will, she was suffering from Alzheimers disease and delusions, and suffered from poor eyesight reducing her ability to read, the judge concluded:

  1. The will reflected a long held determination of the testator to leave the farm to her son.
  2. The testator was able to read the document and, given her character, would indeed have read the document before signing it;
  3. The testator might have been suffering from some dementia and forgetfulness but there was no evidence to suggest that her mental condition had an impact on her understanding of the will, the contents of the will and what the impact of the will was.

Conflicting Evidence

During the course of the case, the judge heard a good deal of conflicting and apparently unsatisfactory evidence from those defending the will. There were also questions relating to the truth of the contents of an Attendance Allowance application form completed by the testator’s sister shortly after the will was executed, and the role of the testator’s niece who had drawn up the will and who also acted as the testator’s GP. However, the judge was able to take into account evidence from hospital records, from holiday makers who regularly camped at the farm, who knew the testator and who had dealings with her over a number of years, and also evidence from the witnesses to the will about the testator’s behaviour on the day the will was made.

As is often the case in these situations, just because the will was drawn up was not the way other people might have drawn up a will did not make the way the estate was divided irrational. Similarly, although the daughter’s evidence suggested a general picture of the testator’s mental deterioration, other evidence was available to counter this, and there was nothing to specifically suggest that the testator did not know what she was doing in relation to the will itself. In fact, the evidence of the witnesses to the will suggested the testator clearly knew what she was signing.

Challenging mental capacity

If you are thinking about challenging a will on the grounds that the person making the will did not have the mental capacity or understanding to do so, you will need to consider what evidence you have to support this. Your own recollection of the person’s condition and his or her behaviour will be important, but so will medical evidence, and the evidence of those present when the will was drawn up and signed. In this case, the evidence of regular holiday makers who came into contact with the testator year on year seems to have been significant for the judge in deciding that the testator’s mental capacity had not deteriorated to the extent the daughter claimed.

Mounting a challenge to a will on the basis that the testator lacked mental capacity can be tricky – as this case demonstrates – but is certainly not impossible, particularly if the will has not been drawn up by a legal professional. If you are concerned about the circumstances in which a will has been drawn up based on the state of mind of the testator, and would like to discuss whether you have grounds to challenge a will why not get in touch with us? Book a call back using the online form or call 020 3322 5103.

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Challenging The Validity Of A Will

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Anyone that feels as though they have been treated unfairly or anyone who has experienced a family dispute relating to a will; will be pleased to know that there are opportunities to challenge the validity of the will. Wanting more money or feeling aggrieved that you haven’t received a particular item or asset isn’t enough to challenge a will but there are a number of reasons why contesting a will is a valid option.

Some of the reasons that people will claim a will is invalid are:

  • A beneficiary shouldn’t receive anything
  • Someone who was married or dependent on the person that passed has not received what a sum that they feel is adequate to provide for them
  • Debts and/or assets have been incorrectly dealt with
  • Concerns over the actions of the executors in distributing or administrating the debt

When contesting a will, the first step is usually for the person contesting (or more commonly their legal representatives) entering negotiations with the executors or other beneficiaries. It may be that an agreement can be reached between the relevant parties. If no agreement can be reached and there is still a belief that the will is invalid, it can be contested in court.

Wills are legal documents and need to fulfil legal requirements

There are legal requirements for a will to be valid, such as it needs to be signed by the person creating the will, referred to as the testator, and that this signature has to have been witnessed by a minimum of 2 people.

There is also the situation that a will is deemed as being invalid if the testator acts under undue influence or if they lacked “testamentary capacity” when they created the will. This basically means that the person who creates the will needs to understand what they are doing.

Ways in which a valid will can become an invalid will include:

  • The testator making a subsequent will
  • The testator marries or enters into a registered civil partnership
  • The testator destroys the will deliberately to ensure it no longer applies

If a will can be proven to be invalid, the person will be considered as having died intestate, which means without a will.

People who can contest a will include:

  • The spouse of the deceased
  • Anyone that had lived with the deceased, as “husband and wife” for a minimum of two years
  • A previous spouse who hasn’t remarried and who never received a “clean break” settlement in the separation
  • A child or someone who has been treated as a child
  • Any other financial dependent

The will can be contested by people who feel that they were left out of the will or who feel that they didn’t receive a fair share of the estate. The person challenging the will has to prove why the will is unfair or invalid.

A common for people to challenge wills is to challenge the way that the estate has been administered and distributed by the executors. There are reasons why an executor may need time to resolve the matters of the estate or why the assets available are not as large as what was initially expected (funeral costs and inheritance tax can impact on the available sums as these take priority) and it may be that there are reasons to maintain an asset, with an expected rise in value being a commonly cited reason.

This means that just because someone doesn’t like how an executor is behaving or they haven’t received money in a short period of time they can claim the executor has acted incorrectly. However, if there is a belief that an executor has acted improperly, it is best to seek legal advice and determine what to do next.

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Disputing A Will Based On Undue Influence

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Given that a person has the right to pass their estate on to whoever they choose; it could be argued that the contents of a will should be taken as they are provided. However, and even allowing for people to be experiencing a wide range of emotions after the passing of someone close to them, there will be times when there are suspicions about the contents of a will.

It can be difficult to prove but there are clearly times when undue influence has been placed on the person creating a will, and this is an area where many people are keen to contest the findings of a will.

In evaluating the valid nature of a will, the aim of the court is to determine if the will is a genuine representation of the person’s wishes, and not the will of another party. Landmark cases in this area took place in 1920 (Craig v Lamoureux) and 2007 (Edwards v Edwards), with the latter case seeing the court state that the issue at hand is whether an undue influence has been utilised to impact on the will’s execution.  There is a need for the person or parties challenging a will to prove that a level of undue influence has taken place and the burden of proof is a high one.

Courts look for key factors in undue influence cases

The most common criteria utilised by a court in providing undue influence include:

  • The facts are not consistent with any other outcome or hypothesis
  • That undue influence relates to influence which has been developed through fraud or coercion
  • Coercion is deemed to be a pressure that dominates the wishes of the person creating the will, without actually causing them to change their mind
  • The person who created the will has not behaved as a free agent in their decision making

It is rare that direct evidence of undue influence is available, but courts are often willing to make an inference that undue influence has taken place. A case in 2013 (Schrader v Schrader) has helped clarify many of the matters associated with undue influence, and it is likely that this case will be instrumental in other claims succeeding. However, each case will come down to the individual evidence on offer and the relevant quality of the evidence.

If there is not enough evidence to prove that undue influence has taken case, it may be possible for claimants to show that the deceased didn’t know and/or approve of the content of the will. If there are genuine suspicions regarding a will, it may be that claiming on a want of knowledge or approval may be more likely to succeed than a claim based on undue influence. With this style of claim, the burden of proof is placed on to the party who is reliant on the disputed will. They will then have to prove to the court that the will was a genuine reflection of the intentions put forward by the person who created the will.

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The Main Grounds For Contesting A Will

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When it comes to contesting a will, there are a number of reasons available and here are the main grounds for contesting a will:

  • A lack of testamentary capacity
  • A lack of valid execution
  • A lack of knowledge and approval
  • Undue influence
  • Fraudulent or forged will
  • Construction and rectification claims

A lack of testamentary capacity

A person making a will has to be of sound mind and a legal test dating back to 1870 (Banks v Goodfellow) states that for a will to be deemed as valid, a person must:

  • Understand they are creating a will and the impact of that will
  • Understand the value and nature of their estate
  • Be aware of the impact of including or excluding people from the will
  • Not suffer from any incapacity or disorder of the mind which may impact on the will they create

The law has evolved since this ruling but the key aims remain in place.

A lack of valid execution

For a will to be valid, it has to meet the following requirements:

  • To have been signed by the person making the will and that they intend for the will to be adhered to
  • For two witnesses (at least) to be present for the signature of the will
  • For the witnesses to have signed or attested that the signature was valid

A lack of knowledge and approval

In legal circles, it is assumed that the will has been executed in a legal manner unless there is evidence to suggest that this is not the case. There is also the fact that the person creating the will should be aware of the contents of the will, and they should have approved of the content.

This is an area that people will content a will and if it is possible to prove that the person creating the will was unaware of its content, or that suspicious circumstances impacted on the creation of the will, the courts are likely to allow the will to be contested.

Undue influence

The law will not automatically assume that a person deemed to be in a position of trust who has received assets has done so because of undue influence. There is therefore a need for someone to prove that “actual undue influence” has taken place. Although recent cases indicate that courts are willing to hear and accept arguments where it can be show that undue influence has taken place.

 

If you believe that a person has made a will as a result of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help. We have a proven track record in cases of this nature.

Fraudulent or forged will

There are many ways that wills can be constructed in a fraudulent or forged manner, including one party telling the person creating the will lies or false stories to influence the decisions they make for their will. Again, there is a need to prove that a will has been forged or fraudulently created but recent cases indicate that courts are willing to hear and accept claims of this nature that can be backed up.

Construction and rectification claims

Another way in which wills can be contested comes with a construction claim and this commonly associated when wills are worded in an ambiguous or unclear manner. In claims of this nature, a court will be asked to decide on the meaning of the words utilised in the will.

 

 

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Who Can Contest A Will?

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Given that wills are mainly associated with someone’s passing, it is only natural that it will be a difficult time for many people, with a wide range of emotions being experienced. A lot of the time, many people are not focussed on a will, dealing with the issues of losing someone that they love as opposed to worrying too much about how the assets will be divided.

However, there are times when people will wish to contest a will, and the following people are all able to contest a will.

Family members – Blood Line relatives

If a will is being contested, it is likely that it will be contested by a family member. When a will is being contested in this manner, Intestacy Rules are usually raised and argued. When someone “dies intestate”, it means that they have passed away without a will stating how their estate should be distributed.

There are set rules to distribute a person’s estate with guidelines and limitations in place for:

  • Married couples and civil partners
  • Children
  • Adopted children and children from other relationships
  • Grandchildren / Great-Grandchildren
  • Other relatives

One thing that is extremely important, especially with respect to the Inheritance Act, is being a blood line family member. If there are no surviving blood line relatives, the estate is passed on to the crown.

A dependant of the deceased

Someone that was financially dependent on the deceased, without being a blood line relative, is in a position to contest a will with respect to the Inheritance Act.

Someone who stands to benefit from the will

Just because someone has been listed as a beneficiary of a will doesn’t necessarily mean that they will receive what they are due. It may be that a failure on behalf of the executors negatively impacts on a person receiving what they are owed and in this case, it is permissible for the beneficiary to claim against the executor’s estate.

A debt claim

Someone who is owed money from the estate is allowed to make a claim for the money that they are owed.

Someone that has been promised something by the deceased

In recent times, there has been an acceptance by the Courts to recognise claims where it can be shown that an assurance or promise was made to the claimant by the deceased. If the claimant was relying on that promise being upheld, and can show that they did so to their own detriment, it is likely that courts will allow for the will to be contested in this manner.

Courts are generally looking for three stands in this sort of claim:

  • Evidence of the assurance or promise made by the deceased
  • Reliance on the promise
  • A loss must have been suffered by the claimant due to their reliance of the promise

When all three of these aspects are in place, there is a likelihood that the court will allow a claim to be made on a will or estate.

It should be noted that there are time limits associated with making a claim on a will. Anyone making a claim for maintenance has a period of 6 months from the grant of probate to make a claim. Any beneficiary making a claim against the estate has a period of 12 years from the date of passing.

 

 

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What are my chances of success in a will contest claim?

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Consider these:

• Really the estate is going to have to be big enough to warrant a claim – principles don’t pay bills!

• Likewise your interest in the outcome of the dispute has to be big enough to warrant a claim (a bad example: you successfully prove a Will to be invalid, meaning the earlier Will is now the legal Will, under which you are left a legacy of £200!)

• You have no money and no means of paying for legal assistance – a no win no fee arrangement with a company such as ours can help you here

• You are very determined and prepared to help your lawyers to further your claim – this will considerably improve your chances

• You have a longstanding issue with the person (perhaps a brother or sister) who you think caused the Will to be changed in their favour and regardless of cost, you want to continue that war – probably not healthy or useful and may actually lead to a poor outcome

• You know that the person who made the Will had mental health or memory problems at about the time the Will was made and was receiving medical treatment for those problems but you haven’t been able to get hold of the medical records – no problem, we can do that, and this is likely to considerably improve your chances of success

• You know that the person who made the Will had mental health or memory problems but was only being treated for these some time after the Will was made – without independent evidence from treating doctors who can say that at the time the Will was made, you are unlikely to be successful

• You have been told by one or both of the two witnesses (who witnessed the person who supposedly made the Will signing it) that they don’t remember seeing that person doing so – possibly helpful but only if this Will was made relatively recently

• You believe that the person who supposedly made the Will did not sign it as his or her signature is very different from what you remember – if solicitors arranged the execution (signing) of the Will, this is unlikely to be helpful but it may be extremely useful if the Will was “homemade”

• The Will is “homemade” and probably prepared by the person who benefits under the Will – this could be very helpful to your case

• One of the witnesses to the Will is a beneficiary under it – this could be extremely useful to your case

• After the Will you are disputing was made the person who made it married or got divorced – again this could be extremely useful to your case

• You had fallen out with the person who made the Will before it was done – this does not necessarily mean you will not succeed

• The person who died was supporting you and/or was one of your parents and you are now in dire financial straits – this could considerably improve your chances of success and as we mention, it will be possible for us to help you to pursue your claim under a no win no fee arrangement so your lack of funds will not stop you from pursuing your claim

• The person who died was your husband or wife and/or the father or mother to a child in your care and no provision has been made by the Will – you are very likely to succeed with your claim and we can help you to do so under a no win no fee arrangement

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How do I contest as will?

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The starting point is understanding that in England and Wales a mother or father is not obliged to leave his or her estate to their child or children and that “family” money or property doesn’t automatically pass to a blood relative.

The bottom line is you cannot contest a Will because it is “unfair”.

The next issue is the estate size. It is very expensive to engage Solicitors, Barristers and experts, all of whom might be required if there is a serious Will dispute. There is in short, no point in arguing over pennies. Whilst a no win no fee arrangement in a Will dispute might seem to be appropriate in this case – it is NOT! No win no fee doesn’t mean no fee at all. It simply means there is nothing to pay unless the case is won. Once it is won, the Solicitor and/or Barrister can charge.

Having considered all of the above, there is yet a third issue to consider. What happens if you successfully contest the Will? You might think this is a strange consideration but it is actually rather important. Legally you cannot contest or dispute a Will unless you have an interest in the outcome. In practice this means that you must have an interest in the estate under a previous valid Will (in other words you are a beneficiary under that Will) or if none, by the rules of intestacy as one of the deceased’s nearest living relatives.

Having considered and understood the above, there are in general two types of dispute:

1. A claim the Will is not valid
2. A claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975

You can run both claims!

A claim the Will is not valid can be divided into three types of claim:

1. Firstly, that the Will was not properly executed (signed by the person making the Will in front of two witnesses who have also signed) or was forged
2. Secondly, that the person making the Will could not have understood what he or she was doing
3. Thirdly, that the person making the Will was forced to do it (commonly known as undue influence)

You can make claims about all three at the same time or individually. It will depend on your case as each one is different.

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Contesting a will with willclaim.com

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Contesting a will with willclaim.com

Let’s not beat about the bush, it is sometimes difficult (but not impossible!) to successfully contest a Will. Given so, whilst a number of Solicitors now advertise their services for this work, many will not do so under a no win no fee arrangement. Willclaim (which is a marketing website for Inspire Law Solicitors) is an exception to this as we are able to offer our services on a no win no fee basis to almost all of our clients.

Does this mean we are prepared to take on every Will Contest Claim (under a no win no fee arrangement)?

Clearly no! We have to be satisfied that we will win your case. This does not necessarily mean you have to have a cast iron case (no one can know that at the very first stage of considering the claim) but the potential client must:

• Be honest!
• Answer all of our questions (or say where you cannot)
• Be determined to proceed but flexible enough to deal with the inevitable advice that you will receive (from us) on costs and risk (this is not a black and white process and there is not necessarily and right and wrong answer)
• Accept that in the English and Welsh jurisdiction, there is no right to inherit from the estate of a near relative (including your mother and father) and in particular that there is no concept in law of family property (which passes down through the generations)

How quickly can we proceed with your claim

Most Will Contest claims are resolved in about 6 to 12 months. A minority can become protracted, but they remain a minority. More importantly, and bearing in mind when we take on your claim, we are unlikely to have all of the available evidence, we should be able to determine within a few months whether there is sufficient to enable you to continue with your claim and ultimately to win it. If you cannot, we would both simply walk away from the dispute and given the no win no fee arrangement, you would have no responsibility to meet our fees.

Why are Will Contest claims sometimes difficult to win?

There are different reasons for different cases, but here are some examples:

• In a claim that a Will is not valid because the person making it lacked legal testamentary capacity because of dementia, it is because in general one is reliant on contemporaneous medical records prepared by honest medical professionals who completed them to assist their treatment of the deceased (eg. for dementia) and not for the purpose of legal proceedings – therefore by their nature they will be deficient
• In a claim that a Will is not valid because of “undue influence”, there is unlikely to be any evidence (at all) of the undue influence, since, given its’ nature, it will be underhand and/or hidden (normally clients who make this claim will “presume” there must have been undue influence, since they were left out of the will in the context of earlier promises or because of an assumed parental duty to them)
• In the context of the current law of England and Wales (whereby there is no right to a parent’s estate), a claim by a disappointed adult child for financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, is usually very difficult to run absent “special reasons” which include ill health causing poverty
• In general, because one is often reliant on evidence that is years old

How many Will Contest claims do we win?

Most!! – but please be clear, this strips out those claims we identify we cannot pursue in the first few months following our instruction (see above).

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No win no fee and will contest claims

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It is becoming quite rare to find Solicitors able and willing to take on a will contest claim under a no win no fee agreement. There are three good reasons for this:

1. They are very difficult claims to win and moreover to resolve by amicable agreement as invariably there is a good deal of acrimony
2. When they are won, there is often a long period between the settlement and the date of eventual payment, quite simply because there is often a property to sell
3. Emotions are high and the obvious unfairness of a loved relatives Will is often taken as compelling evidence that “something is not right” or in legal terms of undue influence

A claim that a loved relative was unduly influenced is akin to an allegation of fraud. What this means is that the hurdle over which your solicitor has to jump is much higher if such a claim is made. Effectively, you have made it much more difficult to win your case. Understandably then your lawyer under a no win no fee arrangement may not be keen to take on such a case. He will want to know where the independent evidence of undue influence is likely to come from as independent evidence, preferably from professionals, is going to carry the most weight for a Judge. Regrettably ones assumptions based on historical promises of equality and fairness voiced by you the client will carry very little weight or strength at all.

This then is the key to winning your claim – independent evidence preferably from professionals. In the majority of cases where a claim is made the Will cannot be valid, your lawyer will be looking for evidence of lack of capacity, the most obvious examples of which will be evidence from treating doctors or consultants (in other words independent medical professionals).

Independent evidence from a professional is different from independent expert evidence. The latter does carry some weight; for instance the evidence of an eminent forensic Psychiatrist who (whilst never having treated the deceased) considers his or her medical records and forms a “favourable” view that leads one to doubt capacity at the time the Will was made. However it is not as strong as the evidence of a treating doctor, even a GP. If a GP has been asked to confirm capacity at the time the Will was made, this is likely to make it almost impossible to overturn.

In a recent enquiry, we were asked to consider taking on a claim which had run for a number of years, that a Will was not valid because the person making it had dementia at the time it was made. The previous Solicitors were acting on a paid basis (ie not under a no win no fee agreement). They had commissioned 2 experts reports from experts who had not treated the deceased who each confirmed that he lacked capacity when he made his Will. We were approached and asked to consider the papers with a view to taking it on under a no win no fee arrangement. We did consider the papers but found that in the period the Will was made (and for about a year either side of it) the deceased had not really been treated or assessed so there was no independent evidence at all of his condition when the Will was done. We did not therefore take it on.

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WIN a 16GB iPad Mini with Will Claim Solicitors! (T&C)

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Willclaim competition image

Terms and Conditions
1. Entry into this competition implies acceptance of these rules. The owners of Willclaim Solicitors reserve the right to amend these rules at any time.
2. No purchase is necessary to be entered into the competition.
3. The promoter of the competition is Willclaim Solicitors
4. The competition is open to any residents in the UK only.
5. The competition is not open to employees of Willclaim Solicitors or any associated company, their direct family members or any persons directly or indirectly connected with Willclaim Solicitors or running of the prize draw or the provision of any of the prizes.
6. To be eligible for entry into the competition, entrants must Follow @willclaim on Twitter and Retweet the competition post.
7. Winners will be selected at random by an independent person. The first valid entry drawn will be the winner. A winner selected under the age of 18 years old will be automatically disqualified and another winner will be drawn until a suitable winner has been found that meets the qualified criteria.
8. The judge‘s decision is final. No correspondence will be entered into.
9. The prize is for a 16GB iPad Mini
10. The prize may not be redeemed for a cash alternative, sold to any other person or is not transferable.
11. The winner will be contacted directly via Twitter on Tuesday 14th July 2015 after 6pm. If the winner cannot be contacted within a reasonable time, Willclaim Solicitors reserves the right to re-draw a winner and thereafter until a winner on these terms is found.
12. By entering the competition you are giving permission to be contacted by Willclaim Solicitors. Permission can be withdrawn at any time by giving notice in writing addressed to the Promoter.
13. The competition commences on Tuesday 16th June 2015 and closes at 6pm on Tuesday 14th July 2015 and the winner will be announced shortly afterwards.
14. The name of the winner will be promoted on the Twitter account of Willclaim Solicitors

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Benefits of Using a Will Claim Specialist

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Wills can be confusing and there is often a lot of jargon and red tape surrounding inheritance, which can make it difficult if you believe you are entitled to more than you are being offered. It may be that you were promised something in return for maintenance or changing your position (giving up your job or house, for instance). It may even be that you dispute the legitimacy of the executor and believe that they are not acting impartially. Regardless of what your dispute is, we can advise you on your options and help you win what you are rightly entitled to, usually on a “no win, no fee” basis.

At WillClaim Solicitors we cover the whole of England and Wales, including London and the South East. We specialise in contesting and challenging Wills, Inheritance, Trusts and Probate and have a dedicated team of experts who are all members of ACTAPS (Association of Contentious Trust and Probate Specialists), so you know that your case is in the best possible hands. Should your case require, we can even provide you with specialist Barristers or mediators to ensure your dispute is brought to justice in the correct manner, with minimal costs to yourself.

Our team of expert solicitors are experienced in the most difficult and protracted Will and Inheritance disputes and thus are willing to take on almost any case. We’re confident that we can make the process as easy and stress free for you as possible, whilst explaining and talking you through all the jargon and each option throughout the entire process.

Although we offer “no win, no fee” in almost 100% of cases, in some rare cases where you may not be eligible, we have access to ATE (After the Event) insurers. They can provide you with costs and disbursements protection so you know you’re covered no matter what the outcome may be.

Why not take a look at our Testimonial Page to see how we’ve helped many other people with their disputes over the years. We’re confident that regardless of whether you think you’re entitled to more than you’re being offered, or someone else is trying to unfairly take your share, our team of experienced expert solicitors can help you gain a suitable outcome that you’re happy with.

To see how we can help you with your dispute, we offer a Free Claim Assessment to provide you with advice and an assessment on what we believe you may be entitled to and how we can help you get it. Just fill in a few simple details and one of our experienced advisors will contact you to discuss your case in more detail. You can rest assured that we will never sell your details on to a third party and nor will we contact you after your assessment unless you want us to.

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WHAT IS A MEDIATION (IN WILL CONTEST CLAIMS)?

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1. What is mediation?

A mediation is a negotiation in a formal setting with a professional “mediator” who tries to help both sides to resolve their dispute. In will dispute or will contest claims, he or she is usually a legal professional (most often a Barrister with experience in the will dispute field), who is paid by each side to act as an independent facilitator.

2. What happens if I can’t afford to pay for one?

If you obtain ATE insurance (insurance which protects against the risk of losing and thereby paying the other side’s costs), the mediator’s fees will be covered by this insurance. In addition, it will always be possible to obtain a loan to support your claim. In certain circumstances we will meet this cost for you.

In general, where we advise you to go ahead with a mediation in a will contest claim, you should do so. Firstly, it will avoid criticism by the court if at the end of your claim you have failed to engage in a mediation…..which could in fact lead to a costs order against you even if you win! Secondly, we will only advise on a mediation where there is a good chance of success in which regard 90% of our mediations lead to a resolution of the will dispute claim.

3. What usually happens in the mediation? Do I have to meet the other party?

You do not have to meet the other party if you do not want to!! However, some mediators will regard this as important (but nevertheless will listen and act on your views). It really depends on the case.

In general, each “team” at the mediation will have its own room. The mediator will shuttle between rooms taking messages, offers and responses. He may also canvass one team on a particular aspect of its case which requires further explanation or clarification.

The mediation will usually start with the mediator explaining what he will do and that he cannot act as Judge. He is also likely to tell each side that whatever is said at the mediation stays confidential to it.

It may be the case that each side decides in conjunction with the mediator that a formal round table meeting is necessary and/or advantageous, so that each side can explain their position. This probably occurs in about 50% of cases. Other than to say your name, you are unlikely to be asked to speak where, for example, we are representing you.

This round table meeting will last perhaps 40 minutes and then each team retires to their own rooms.

Unlike court hearings, there are no rules governing what each party does in the mediation – except there is a mediation agreement which will bind the parties contractually, the most important aspect of which is the complete confidentiality of the mediation process – even a court cannot be told what has happened.

This can lead to interesting evidential revelations, to include one mediation where the other side produced a video of our client without notice, claiming that it showed she was much healthier than had been maintained! A mediation can also be used to “hot tub” expert or lay witness evidence (in other words to call and allow that witness to be cross examined but in a neutral environment) although this is rare in will contest cases and is certainly not our experience. It is only likely to work where each party has been fully canvassed about it and agreed to it.

4. How long does the mediation last in Will contest claims?

In general they will last a day so be prepared for the long haul! In some cases, in particular where a settlement has not been possible, but the distance between the parties has been narrowed; the parties might agree to the mediation being kept open but by correspondence and/or to a further mediation meeting at a point in the future after more evidence or fact gathering has occurred.

In short, it is an extremely flexible as well as surprisingly effective process.

5. Is the agreement or settlement concluded at the mediation?

In general terms yes! In fact we had one where the agreement took just as long to draft as the actual settlement discussions, leading to an eventual conclusion at midnight! Thank fully this has only happened once.

6. Finally, why not simply take the case to a trial?

The answer is simple – there is no certainty in so doing. In even the best of will claim or inheritance claim cases, there has to be a 35% risk since there is a large discretionary element in the hands of the Judge, when he or she considers it. Essentially, if your face doesn’t fit on the day, you could end up with a bloody nose! Mediation, in fact settlement in advance of a trial (not necessarily court proceedings – these might be necessary to force your opponent to see sense) buys you certainty in your will dispute, inheritance dispute or will contest claim and yes, it does mean that this “risk” can be considered to have a price.

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MEDIATION IN WILL CONTEST CLAIMS – YOUR QUESTIONS ANSWERED

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1. What is mediation?

A mediation is a negotiation in a formal setting with a professional “mediator” who tries to help both sides to resolve their dispute – often by means of clever questioning, crystal ball gazing (eg. Where will we be in in a years time if the will dispute is not resolved??)

2. Does a mediator act as Judge in relation to your will contest claim?

Definitely not! Moreover everything discussed during the mediation remains confidential to it and cannot be used in any Court proceedings to determine the issue

3. Why bother with a mediation (and thereby pay a mediator) when you can simply negotiate your will dispute face to face or by telephone or exchange of correspondence?

The fact that your claim is still on-going is evidence enough that the more traditional means of resolving it have failed. A mediation is surprisingly (extraordinarily!) effective. The majority of our will contest claims are resolved by means of a mediation and indeed we have a 90% success rate (in terms of will claims that we resolve by means of a mediation).

4. What is the alternative?

There are of course alternative ways of exploring settlement in will contest claims. Simple, direct and/or face to face negotiation as mentioned is an obvious example. However, in our experience these tend to deteriorate into mud-slinging opportunities in will contest claims. The other is to take it to a trial!

5. Why not simply take the case to a trial?

The answer is simple – there is no certainty in so doing. In even the best of will claim or inheritance claim cases, there has to be a 35% risk since there is a large discretionary element in the hands of the Judge, when he or she considers it. Essentially, if your face doesn’t fit on the day, you could end up with a bloody nose! Mediation, in fact settlement in advance of a trial (not necessarily court proceedings – these might be necessary to force your opponent to see sense) buys you certainty in your will dispute, inheritance dispute or will contest claim and yes, it does mean that this “risk” can be considered to have a price.

6. What happens if either I or the other side decide to ignore a request to “mediate”?

The Court of Appeal have made it very clear that a failure to mediate without good reason can mean that the party refusing to participate in relation to his or her will contest claim can be ordered to pay the other party’s costs, notwithstanding they went on to actually win the case!! (refer to PGFII SA v OMFS Company 1 Limited 2013 EWCA Civ 1288).

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Understanding Will Claims with willclaim.com

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Undertaking any legal action is generally a complex and even intimidating prospect that any individual or family should not consider pursuing alone: Will claims are a prime example of this.

We offer no win no fee litigation services regarding will disputes, which are provided to help the Claimant or Defendant get the justice they seek. The past few years we have seen a sharp increase in will dispute claims, which arise when an individual feels that he or she has been unreasonably excluded from a will or that a will has been written by a person who lacks the mental capacity to do so correctly due to age or based on medical reasons.

Disputing a will may involve a claim that an individual rightfully owns certain assets or that a will has betrayed a promise that had been made before. Disputing a will may also be based on a number of grounds that include:

  • A will was not signed according to the applicable laws
  • The individual was improperly influenced in to signing the will
  • The will in dispute was obtained through fraud

When disputing a will it is usually necessary to apply for a Caveat, which will stop the Grant of Probate and thereby the distribution of the estate assets whilst the claim is being dealt with.

Whilst it is important to proceed with your case as quickly as possible, there is no time limit where one is disputing the validity of a Will. There is though a different type of claim which is for financial provision from the estate and which does have a very short time limit of six months. Given it is often difficult to understand which type of claim is likely to apply it is very important to obtain clear legal advice on your position as quickly as possible which we can provide.

Like most legal advisors, we strongly suggest that if possible, alternative ways of resolving the dispute are explored before any court proceedings and in fact the vast majority of the cases we handle are resolved before any court action. This avoids unnecessary costs and stress but we ensure that your case and the terms of any settlement are discussed at length with you to ensure the right outcome is achieved.

For more information regarding our services here at WillClaim then please visit www.willclaim.com or call 0203 322 5103

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Contesting a Will – What is a typical Will claim

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What is a typical claim?

Every case is different although there are broad similarities between cases. Typically though a claim w
ill be one of two types: a claim that the Will is not valid (because there is something wrong with it) or a claim for financial provision from the estate.

What things might make a Will invalid (in other words what could be wrong with it to mean that it is defective)?
A will is not valid if it has not been properly signed by the person making the will and witnessed by two or more witnesses who have also signed it. Also if it has been forged or where the person making it did not or could not have understood what he or she was doing at the time. Finally when the person making the Will has been forced to do it.

What happens if a Will is not valid?
The estate of the individual in question will pass either under an earlier valid Will or where there isn’t one, in accordance with the rules of intestacy – in other words to their spouse and/or children. It is important to note that in these cases, a person can only pursue a claim that a will is not valid if he or she has an interest in the outcome of the dispute (in other words he or she must be a beneficiary under an earlier valid will or by the rules of intestacy)

What is a claim for financial provision and how is it different from a claim against the validity of a will?
A claim for financial provision is simply a claim for cash from the estate under an Act of Parliament called “Inheritance (Provision for Family and Dependants) Act 1975). It is not a claim that there is something wrong with the will and therefore it is not valid and must be ignored. It is a claim by immediate family (spouse, children or dependants) for financial provision where inexplicably the will makes no provision or insufficient provision. The best examples of this might be claims by or on behalf of children who are in full time education or infants, or by a widow or widower. Adult child cases are more difficult but not impossible, particularly where there is a clear financial need.
By all means contact us for further information concerning the above:

Inspire Law Limited
5 St John’s Lane
London EC1M 4BJH
T: 0203 322 5101
F: 0203 322 5102
E: malcolm@inspirelaw.co.uk

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Contesting a Will – No Win No Fee, Costs, Risk and Insurance in Will Dispute Claims – Your Questions Answered

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What is no win no fee?

It is a type of contract between the solicitor and the client which means that the solicitor can only charge if the claim is won

Does it mean that to win a claim you have to go all the way to a trial and be successful there?

No absolutely not. Most of our claims for clients are settled before any court proceedings leading to a trial and even if court proceedings are required, before there is a trial.

Is no win no fee a more expensive type of arrangement than a normal paid basis?

No, not under our scheme. Some no win no fee arrangements provided by other solicitors also include an uplift to the normal charging rate if there is a win,

of up to 100%, but we don’t charge this. We record our time in accordance with an agreed hourly rate. There is no extra charge to the client if we win. We can simply charge

Is there any type of case where you can’t or won’t work under a no win no fee arrangement? our time at that point.

There are very few. In general most of the claims we take on for either Claimant or defendant are funded by this arrangement.

How can you be sure you will win in each case?

We can’t be sure until we take on the claim and start asking questions and getting hold of papers.

So you take on cases when you don’t know you can win them?

Clearly the case must appear to be one which has prospects but yes you are correct, we do take on cases where we can’t be certain we will win.

When will you know whether you are likely to be successful?

Very soon after we take on the claim we will find that out. There is a process you go through of setting out your claim, asking questions and asking for papers. It becomes clear during that and very soon after the claim is started whether it can be won
What about those cases where questions are not being answered and papers requested (for instance wills and medical records) are not being provided?

Yes there are occasions where this happens and we are instructed in consequence. The first thing to say is that questions are usually unanswered and access to papers denied, where the other side are likely to have something to hide so that on its own is a good indicator that something is amiss and the client is likely to win. However, where this does happen there are levers we can use to force disclosure, in particular something called “pre action disclosure”. This is a type of limited court claim where the only issue is indeed the provision of papers. It is relatively straight forward and allows the applicant to obtain a court order forcing disclosure. In short, there is little opportunity to hide anything and ultimately, this will help both sides to reach an agreement.

What then happens to the cases you can’t win?

If we can’t win, then obviously we can’t continue to pursue the claim and it will have to be stopped. However under the terms of the no win no fee arrangement, we can’t charge.

If you win a case, who pays your costs?
The most common scenario is that our costs are met from the estate.
What risks are there (in particular if you can’t or don’t win a claim is there anything to be paid to the other party)

What happens when you stop a claim because you can’t win? Is there anything to pay to the otherside?

The answer is NO! As I have already said, the vast majority of these cases will never see the inside of a court and those that do, as I say, will be of the smallest percentage. In general there will be an agreement which resolves the claim or they will stop.

Is there no risk at all then, for even those that go all the way to a trial and are lost?

Clearly if your claim is one of the small number that go all the way to a trial and are lost, there is a risk you could be ordered to pay the other side’s costs. However, we do not recommend that you engage in court proceedings unless you have insurance against the risk of losing (and of paying the otherside’s costs). If against our advice, you have proceeded without such insurance, then clearly you are going to be at risk.

How do you get this insurance? Are you guaranteed to get it in all cases?

You will be able to get this type of insurance if you have a good chance of winning. We can certainly investigate it for you although we cannot make recommendations in relation to the different insurers or their policy terms. However, this is not something you will need to worry about at the start of any claim because:
a) it is only after the issue and service of court proceedings there is any risk
b) most cases resolve by agreement before any court proceedings are necessary

WHAT WILL I DO THEN IF I CAN’T GET INSURANCE?

If you cannot get insurance then your claim was never going to be strong enough to pursue in the first instance and you would have to stop your claim before you were at risk. At that point, as already mentioned, given we have not “won”, we cannot charge.

Might I have my own insurance anyway?

Yes it is quite common to have legal expenses cover under your household policy which we will investigate for you as a matter of course in which instance there will be no premium to pay (as you have already paid it)

But what if I don’t have legal expenses cover, how will I pay the premium?

If you don’t have your own legal expenses cover and you need insurance, it will be provided on terms that you pay nothing unless and until you have won. Basically it mirrors the way the no win no fee agreement works

How much will I have to pay if I win

We will obtain a number of quotes for you, but in our experience the premiums in these type of claims are likely to exceed £10,000. It follows then that your claim must be of sufficient value to enable you to meet such a premium if you win from your winnings. You will be provided with our advice about that in advance of needing the insurance and accepting it. . However and to be absolutely clear, this premium will not form part of the claim for costs you will make (because if you win the other side will in general be ordered to pay your costs). Your claim then must have sufficient value to warrant bringing and pursuing court proceedings

But what if I lose the claim, will I still have to pay this premium and what about your costs?

As we have said, this type of policy mirrors the way the no win no fee agreement works, so if you lose you will pay nothing. You will only be obliged to pay the premium if you win the claim

By all means contact us for further information concerning the above:

Inspire Law Limited
5 St John’s Lane
London EC1M 4BJH
T: 0203 322 5101
F: 0203 322 5102
E: malcolm@inspirelaw.co.uk

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How to contest a will – the importance of the Wills Act 1837

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The Wills Act 1837 is 176 years old this year and yet it serves as the foundation for all wills made since, in England and Wales. Strangely it is often ignored in the context of Will dispute claims and yet it provides critical rules that govern whether a Will is actually valid.

When should one consider the Wills Act 1837 in will dispute cases?

Really it is important to always have the Wills Act 1837 in the back of your mind in the context of every will contest or will dispute case. However, there are certain instances when it is more important to consider its rules:
• Where for instance the Will was not made or executed by a Solicitor
• Where there is likely to be a debate over the validity or effect of any previous Wills
• Where there is a question mark over a witness (for instance the witness is a near relation of the beneficiary)
• Where after making the Will, the person who made it, marries and/or divorces but does not make another Will
• Where after making the Will, the person who made it decides to alter part of it but doesn’t do so by means of a new Will or by something called a Codicil
• Where the Will makes a gift to the child or grandchild, but that child or grandchild dies before the person making the Will (what happens to the gift to them following the Will writers death)
It is sometimes helpful to read the Act, notwithstanding its old fashioned words. We paste a link below:
http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/contents
o Where for instance the Will was not made or executed by a Solicitor
You cannot assume that because it was made by a Solicitor, it has been properly signed and witnessed, although it is a good bet that it has. However, we are increasingly coming across Wills that have not been prepared by Solicitors which have not been properly signed and witnessed (we call this “execution”). Further, wills that have been prepared by Solicitors but who have left the “execution” to the client and they have failed to comply with the rules.
The rules on the execution of Wills (their signing and witnessing) are set out in section 9 of the Wills Act 1837. It says:
Signing and attestation of wills
No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.]
These requirements are so vital it is worth a second read if you are engaged contesting a Will, in particular the parts about the “testator” (the person making the will) signing it or acknowledging his signature in the presence of two or more witnesses who are present at the same time and who each sign the Will (to confirm the will writer has actually signed it himself and not some other person). We have had several recent cases involving “home made” wills where the witnesses did not see the will writer signing his or her will. In accordance with section 9 of the Wills Act 1837, those wills are not valid and can be set aside by the court.

Where there is likely to be a debate over the validity or effect of any previous Wills
In a will dispute case, the validity of a previous will (to the will being contested) is often critical. Where for instance the person contesting the will is not a named beneficiary under a previous Will, it might not be possible for him or her to continue to contest a later will, as they will have no interest in the outcome of their claim. Given so, it is important to check if the previous will is actually valid too. As above, it must comply with section 9 of the Wills Act 1837 – signed by the person making the Will in front of two witnesses who also sign it (in general terms). However other matters might invalidate the earlier will meaning, for instance, that the person disputing the later Will is entitled to the estate as the nearest living blood relative of the deceased under the rules of intestacy. A typical example would be where following the making of the previous Will, that will writer married and did not make a new Will. The marriage revokes the subsequent Will by virtue of section 18 of the Wills Act 1837. A subsequent divorce has a similar effect – section 18 A of the Wills Act 1837.
• Where there is a question mark over a witness (for instance the witness is a near relation of the beneficiary or lacks capacity or receives a gift under the terms of the Will)
Again all this is governed by the Wills Act 1837. Section 15 confirms that a gift to a witness is void (or to the wife or husband of the witness). Section 14, that a Will is not made invalid because of the “incompetency” (ie inadequacy) of one of the witnesses. Where after making the Will, the person who made it, divorces but does not make another Will

We have already dealt with this above. Marriage revokes a previous Will and divorce has a similar effect.

• Where after making the Will, the person who made it decides to alter part of it but doesn’t do so by means of a new Will or by something called a Codicil Section 21 of the Wills Act 1837 applies. An alteration to a Will is not effective unless it is signed and witnessed (like the will itself – pursuant to section 9). In other words, the person making the will and altering it subsequently, must sign it in terms which confirm the alteration to be his (or hers) and in front of two witnesses, as if he had prepared an entirely new Will. Once again then, in a will contest claim where it appears there have been some alterations to the Will, those will not be valid unless it can be shown the person making the Will has “executed” them by resigning the Will in front of two witnesses who also sign it.

• Where the Will makes a gift to the child or grandchild, but that child or grandchild dies before the person making the Will (what happens to the gift to them following the Will writers death)

This is interesting!! It could be useful in a situation where again, a person is disputing a will but has not been named as the beneficiary of the deceased under a previous valid Will. Again, this could cause a massive problem given unless the person disputing a Will has an interest in the outcome of his or her claim (by virtue of a previous valid will or by the rules of intestacy) he or she cannot continue to pursue it. Section 33 of the Wills Act 1837 can provide a solution. By this section where the Will makes a gift to the child of the deceased (or grandchild) but that child dies before the person who made the will, leaving children (grandchildren of the deceased or great grandchildren), notwithstanding there is no specific gift to the grandchildren (or great grandchildren), they will receive the gift intended for the child.
By all means contact us for assistance in relation to your own dispute:
www.willclaim.com
Or call direct: 0203 322 5103

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CONTESTING A WILL – ANATOMY OF A TYPICAL WILL CLAIM

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Here is a point by point summary of what is likely to happen in a typical will dispute where we are claiming against the validity of a will. I will provide details of a will dispute claim involving a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

1. Instructions received to contest the validity of a deceased’s will by her son on the grounds that at the time it was made, she lacked legal testamentary capacity. The son claimed she had dementia and did not have the capacity to make a will at the time it was made. He said that towards the end his sister (whom he believed was the sole beneficiary under the new will) looked after his mother towards the end of he life (as she lived closest) but that during this period she tried to exclude him from his mother’s life, notwithstanding he was her youngest child and was actually the apple of her eye.

2. It was during this period (shortly before his mother’s death) that a dispute started between himself and his sister given she also took over his mother’s affairs under a power of attorney, but he believed she was misusing it as during the same period she purchased a new car (when she had no money of her own) and started going on extravagant holidays.

3. She did not tell him about his mother’s death. He found out from another near relative and she tried to exclude him from participating in her funeral, but she went to it anyway.

4. He contacted us soon afterwards and asked us to consider helping him under a no win no fee arrangement to dispute what he assumed was likely to be a Will, made during the period under which he strongly suspected his sister would be the sole beneficiary. He did not have a copy of the Will and didn’t know whether it was a home-made will, or likely to have been made by a local solicitor.

5. We agree to help him under the no win no fee arrangement to contest the will. We consider with the client whether we should enter a Caveat to stop the Grant of Probate and decide on balance to do this given if necessary the Caveat can be easily removed.

6. We obtain authorities from our client to obtain his mother’s medical records and write to her GP and the hospitals attended. The records arrive and clearly reveal his mother was being treated from memory and other problems by the local Community Mental Health Team. This followed a referral from her GP who had performed a Mini Mental State Examination (which are a series of basic questions that most average people can easily answer) on his mother about 2 years previously under which she had scored about 10 out of 30. There was also a reference to social services at the time, but we were not able to obtain their records without the executors consent.

7. Our client finds out the name of Solicitors he says are handling his late mother’s estate. We write to them and set out in detail our suspicions about a will being made during the short period before her death when it is clear that she lacked legal testamentary capacity. Further that our client is contesting this will. We provide details of her medical records and invite full disclosure of all of their relevant papers including the Will and their will file and access to social services records. We confirm that our client is willing to engage with their client in so called ADR (alternative dispute resolution – in this instance mediation) to try and avoid a court action.

8. The solicitors in question write back and provide a copy of the Will. This confirms it was made during the period when in our view the deceased lacked legal testamentary capacity. However, they refuse to release their will file.

9. We write back and say that unless the will file is released, we will make an application for its disclosure, through something called “pre action disclosure”. Under this, they are obliged to provide their papers and unless they do so they can be forced to do so by the court. It is not a full blown court claim against the validity of the will but a type of subsidiary claim. We also send them a series of questions (called Larke v Nugus questions) which they are obliged to answer, failing which, again, we can make an application to the court to force them to do so.

10. The Solicitors concerned reluctantly provide the papers (their will file) and answer our questions about the formation and execution of the will. It is quite plain our client’s sister played a key part in the process; in fact all of the communications were through the sister and there is no reasonable explanation for this. However, it is quite plain to our client that it was because it is his “sister’s will” and not his mother’s.

11. All this is extremely helpful, but we need “evidence” to sustain our claim that his late mother lacked capacity to prove the will was likely to be invalid. Failing that it will not be possible to win the will dispute. The solicitors acting for our client’s sister are aware of this and point out that we have no evidence to sustain the will contest dispute and threaten to “warn” the caveat unless the remove it. The warning process will make the caveat permanent so that it can only be removed by court order. It does not actually make much difference in a claim of this nature where our client has sufficient and proper grounds for challenging his mother’s will and will inherit under the rules of intestacy. It is only an effective means of getting rid of a caveat if the will dispute has no merit and/or the person challenging the will, has no real interest in the outcome of the dispute (in other words won’t inherit if the will is invalidated by intestacy or under an earlier valid will).

12. We write to the deceased’s GP and treating old age Psychiatrist. The Old Age Psychiatrist is extremely helpful and agrees to provide us with a report which confirms our suspicions that the deceased did not have legal testamentary capacity. Whilst this is still disputed by our client’s sister’s solicitors, it is agreed between the parties that the will should be overturned with our costs being met by the estate.
By all means contact us for assistance in relation to your own dispute.

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Contesting a Will – suspicious pointers

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We find that there are patterns of behaviour or similar facts which often mean there are likely to be genuine grounds for contesting a will. To try and assist, we have listed a number of them below:-

1. Even before death, there are often suspicious patterns of behaviour.

2. For instance, an unlikely friendship between the person making the will and a stranger. Following that difficulty in contacting the person making the will and/or unfounded suspicions by that person against you.

3. During this period there can be a deliberate attempt by the new benefactors of the deceased’s estate, to take over all communications on his or her behalf and/or to prevent communications with close family.

4. At this time, it is also often the case that the will writer is becoming more reliant on a particular individual and may be suffering from mild to severe memory or other mental health problems. One way an individual can manipulate the will writer is by pandering to their whims notwithstanding they have been given clear advice by professionals against a particular thing or action. A typical example might be the provision of alcohol or a willingness to allow the person to continue to drive, notwithstanding clear professional advice against these things. Well-meaning close relatives who refuse to allow them are often hounded away.

5. Other red flag pointers include the use of a new Solicitor to change a Will (not the usual family solicitor) and often a change to a new GP.

6. Accusations of manipulation against close family members can often flow where a particularly devious individual plants these thoughts notwithstanding there is not the slightest real evidence of this and in fact the will writer has been prevented from communicating with close family members during the preceding period.

7. When the will writer dies, there is often no attempt to communicate that to the close family who will sometimes only find out by accident.

8. Then their subsequent attempts to find out if there is a will are met with the retort “you are only interested in the money” and/or with an outright denial of any knowledge of a will (notwithstanding subsequent information comes to light revealing that person played an important role in the formation of what becomes the disputed will).

9. Attempts to hide the existence or actual copy of the will are likely to persist after the death. Solicitors involved in this process will refuse to release a copy to interested relatives on what frankly is the spurious ground that it is confidential to the deceased (spurious because once a will has been admitted to probate it becomes a public document!!). The reason for this reluctance to reveal the contents of the will is quite simply to prevent the close relatives from realising what has been done given if they do, they can stop the grant of probate by entering a caveat and thereafter pursue their claim to contest the will.

10. Normally one would expect there to be a grant of probate within say 3 months of death. However, it is also often the case the grant application has been pre prepared in advance of death, so that it can be rushed through after the death. Again, this is an attempt to stop a successful challenge against the validity of the will.

11. Another quite telling action (and quite upsetting), is the hijacking of the funeral itself by individuals who have nothing to do with the family of the deceased. Also at the funeral there can be attempts to exaggerate the importance of “friends” over the family of the will writer and to minimise or denigrate the importance of family to him or her.
If you consider that any of these apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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Contesting a will – a point by point guide to resolve a contested will or Inheritance Act dispute

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1. You must be clear you have a right to claim; for instance there is no right to contest the validity of the Will if you have no interest in the estate once the Will you dispute is declared invalid. Further in a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you must fall within the category of potential claimants set out in section 1, so that you are a spouse, child or dependant of the deceased.

2. Ensure that you understand the time limits. There is no time limit if you are contesting the validity of the Will. However, there is a six month time limit from the date of the Grant of Probate if your claim is for financial provision under the Inheritance Act.

3. Clearly set out the basis of your claim to contest the Will in a letter of claim and provide as much paperwork and information as you can. If you are contesting the validity of the will, it might be sensible to enter a Caveat to stop the grant of probate to allow time for your claim to be considered before the estate is distributed (but always seek legal advice if you enter a caveat).

4. Invite discussion with the other parties and consider so called ADR (alternative dispute resolution) to include mediation, simple negotiation or possibly even a joint approach to a neutral specialist Barrister, to pre determine any tricky point of law.

5. Mediation in will dispute claims, is a formal confidential discussion where the parties engage a professional mediation to try and assist each side to move towards a resolution. Whilst it is tempting to engage in no holds barred/winner takes all court proceedings, this is a high risk strategy for both sides and is likely to be frowned on by a Judge. The no holds barred/winner takes all approach could even lead to a costs penalty against you, even if you do eventually win. An experienced mediator will be able to provide impartial advice about this and the likely costs of losing a will contest claim.

6. In our experience it is much better to try and buy off the risk of losing these extremely difficult and contentious claims, notwithstanding the bitterness that goes hand in hand with them.

7. Failing that, you will have to consider court proceedings. If your claim does get this far, we would again urge you to consider engaging an experienced will contest Solicitor such as ourselves. There are many such as us who can provide assistance on a no win no fee basis.

8. You will need to be clear though that if a Solicitor is to work for you in a will contest claim on a no win no fee arrangement, he or she will have to be reasonably confident of success and for obvious reasons (otherwise they may not get paid). It may well be telling, if they refuse to be engaged under such an arrangement, but offer to work on a pay as you go basis instead!
By all means contact us for further information on the no win no fee arrangement or for any information at all, and we will be try and assist.

Willclaim Solicitors
T: 0203 322 5103/E: malcolm@inspirelaw.co.uk

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Challenging a will – a point by point guide in will contest claims

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1. You can roughly divide will contest claims into two distinct types.

2. The first type of claim is one where you dispute the validity of the will because for instance, the person making it was coerced, didn’t have mental capacity or it was not properly signed and witnessed (or even because it was forged!).

3. The second type is where you are a close relative, spouse or dependant and have been left insufficiently provided for and are not then disputing the will was valid.

4. There is no time limit for the first type where you contest the validity of the Will.

5. There is a time limit of six months from the date of the grant of probate where you are claiming financial provision and not disputing the validity of the will.

6. You should at least consider entering a caveat for the first type where you dispute the validity of the will but not for the second. However, you must ascertain in this type of case whether, should you successfully dispute the validity of the will, you actually have an interest in the outcome.

7. What do we mean by having an interest in the outcome? This means in effect that should the will be invalidated, you will inherit at least a part of the estate because of the existence of an earlier valid will, or under the rules of intestacy where there is no previous valid will (where you are therefore one of the deceased’s nearest living relatives). If you don’t have this “interest” you cannot pursue your claim.

8. A Caveat stops the grant of probate whilst your claim is considered. This means the estate cannot be administered whilst your caveat is in place. However, if you enter a caveat you must take legal advice as there are potentially serious financial consequences if you do this where you have no real basis for your claim.

9. In general, if your claim falls within the second type, there are favoured applicants, usually the deceased’s spouse or dependant. An adult child is not particularly favoured where that individual is comfortably off or capable of working – a court is reluctant in general to interfere with the deceased’s wishes by his or her will and will look unfavourably on an applicant to intends to use this type of claim as a means of obtaining a lottery style award or to fund an extravagant lifestyle.

10. In all cases you should where possible consult a suitably experienced lawyer – claims of this nature are littered with pitfalls and traps for the unwary.

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Challenging a Will – tips for contesting

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The death of a family member is in itself a sad event with a huge amount of emotional turmoil as one goes through the grieving process. At the time, considering the legal implications and understanding the ramifications of the last will and testament is often the last thought on your mind. If and when the will is contested there are even bigger headaches to come and turning to professional legal teams is often the best recourse.

The main reasons behind contesting a will lie in the following:-

1) Invalidity of the will itself. Was the testator (the person who wrote the will) in some way coerced or not of sound mind at time of writing the will or was it improperly signed and witnessed

2) While not contesting the will’s validity, where you as a child, dependant or spouse are inadequately provided for within the will.

Nobody really wants to go through the process of challenging a will but if you need to take this avenue, we would suggest the following tips should you need to dispute a will:-

1) In the case of your belief that you weren’t adequately provided for within the will, reflect on your relationship with the deceased. At present, there is a limited selection of people who may be able to contest this type of claim. These include the current or previous spouse, any child or person being treated as a child or any individual being maintained before the death of the deceased. As with all legal issues, there are a myriad of different interpretations and seeking legal advice is best practice.

2) The time limits on disputing or contesting a will stands at 6 months after the grant of probate so ensuring that you get the process started is imperative (although this time limit does not apply if you are contesting the validity of the Will – there is no time limit for that).

3) Communicate. Nobody wants a legal wrangling and break down of relationships in what is already a harrowing time. Ideally, but not always achievable, try where possible to continue communicating with all parties involved to seek an amicable agreement.

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Contesting a Will: Mediation or Trial, what is better in a Will Contest or Inheritance Claim?

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In an ideal world this would happen:

1. Client instructs us to claim against a Will or estate
2. We accept those instructions and proceed to prepare the claim
3. We obtain all the evidence we need including a favourable report from a “friendly” expert
4. We issue Court proceedings and that case runs to a trial
5. We win at trial and recover all of our costs and everyone is happy.

Of course we don’t live in an ideal world. The claim is likely to be defended and vigorously so (anyone motivated enough to manipulate ones gentle mother out of the entirety of her estate is going to be ruthless and determined). Another expert instructed by the defending party is “wheeled out” with a completely contrary opinion to our friendly expert. Additionally a whole host of witnesses provide completely different evidence to our witnesses. Regardless, we stand our ground, are strong and positive. The claim proceeds to trial. At the trial is a single Judge. He will make all the decisions. The atmosphere is formal. We suddenly realize there is something extremely important missing from our statement and which we did not inform our lawyer about. The Barrister on the other side seizes on this and we feel quite stupid. A document appears which no one has seen before and which contradicts our allegations on another important point. Worse still, the Judge seems to have taken a shine to one of our opponents witnesses and disregards are own. We go on to lose the claim.

Is the above a work of fiction and extraordinarily pessimistic?? No, on both counts. In a recent Will dispute claim heard by Mann J, called Schrader v Schrader 2013 EWHC 466 CH, some of these matters came together in a perfect storm and turned an apparently good case on paper into a losing position at trial. The will was written by a professional Will Writer (albeit not a Solicitor). During cross examination a draft Will came to light with handwritten comments by the gentleman who was supporting the Will, clearly showing that he had played a key role in its construction, notwithstanding his evidence to the contrary. The position was made worse because the main witness did not come across at all well in the witness box. Basically the Judge didn’t like him. The claim was lost.

This is a salutary tale. Lawyers call the above litigation risk. In Will dispute and Inheritance claims, the risk is high, largely because of the difficulty in reconstructing events that happened often several years previously and where one will essentially rely on the Judge to make a determination by exercising a judgment call on which witness to believe. If he takes a shine to one over another, the case can be won (or lost). In percentage terms this risk could easily be as high as 35%.

There is a further problem, one will not recover all of the costs, even if there is an outright win. Moreover, in Will contest claims the law on costs is complex – it is not necessarily the case that the loser always pays. In Inheritance claims it is more often the case the estate will pay the costs. Where one is contending the Will is not valid, if the Court finds the testator to blame for the dispute or that it was reasonable to make a claim against the will, it can order costs from the estate or that each party pays his or her own (which could be a financial disaster).

The advantages of a settlement (outside of the court process) then are clear:

1. You buy off the risk
2. You secure certainty and in all probability an earlier payment

However this is business! Furthermore in business, there is a price to pay for wanting something now, for avoiding risk and of course, if you want to reach an agreement it is inevitable that you will have to give something away.

It is really very difficult to discuss these matters face to face on a commercial or business basis where (which these disputes invariably generate), there is so much hot air. This is the reason a Mediation is of so much assistance. To be clear, a mediator is a professional facilitator. He or she challenges, harangues and encourages a dialogue without each side having to meet or discuss the very tricky issues these disputes will generate on a face to face basis. Whilst there can be a face to face meeting, it is not a prerequisite and is usually short and sterile. The main negotiations will take place with each side is separate rooms with the mediator shuttling between.

It is not perfect but then life isn’t perfect either.

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DISPUTING A WILL – LACK OF KNOWLEDGE AND APPROVAL; IS IT UNDUE INFLUENCE IN DISGUISE

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In two recent decisions, where it seems there may have been an argument the deceased was unduly influenced but with insufficient evidence to run that or more importantly a claim that he or she lacked legal testamentary capacity, the courts seem to have been keen to impute instead the deceased did not know and approve the Will contents.

The cases in question are Topciapski (2013) Ch 20 March 2013 and Hawes v Burgess (2013) EWCA civ 74 (a Judgment of the Court of Appeal). 

In Hawes, Mummery J sitting in an appellant position, declined to decide whether a Judge at first instance had erred in law in relation to testamentary capacity and instead pronounced against the Will on the basis of want of knowledge and approval. The following points were made:

  1. The benefiting child was the controlling force behind the will, organising the provision of instructions;
  2. The Solicitor who prepared the Will had no knowledge of the deceased and had not met her before;
  3. He did not carry out a capacity assessment;
  4. Incorrect information and the wrong impression (of another potential beneficiary) had been given to the Solicitor;
  5. The deceased had failing health, was frail with age, had dizzy spells, increased vagueness, memory impairment and problems in recognising      people – dementia of moderate severity;
  6. The excluded child continued to help the deceased on a regular basis;
  7. There was a rift between the benefitting and excluded children.

In other words there was sufficient of concern for the Court to ignore insufficient evidence to find against the Will on the basis of lack of legal testamentary capacity and the fact that a Solicitor had been involved in the drafting and execution of the Will and had taken a detailed note. The relevant questions for the Court to answer are:

  1. Do the circumstances of the Will rouse the suspicions of the Court as to whether the contents represent the true wishes and intentions of the deceased as known to and approved by him?
  2. Has the scrutiny of those circumstances by the Court dispelled those suspicions?

As ever this broad description creates risks for all parties. Plainly there is a broad range of discretion here. There has to be an argument that most claims could fall foul of this but clearly a particular set of facts was at work here which persuaded the Court to find against the Will. One suspects that most claims with modest evidence may not be as lucky.

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SUCCESSFULLY CHALLENGING A WILL – CAN A SUBSTANTIAL LIFETIME GIFT DEFEAT A LEGACY??

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Yes it can. In law (equitable law that is) there is a rule that a parent would not intend to benefit his or her child twice, by making a substantial gift to the child and following the death of the parent, by leaving the same or an equivalent amount by Will. The Court presumes the parent would not intend to benefit one child twice at the expense of any other children.

This rule is overcome if there is evidence that the gift is intended to be just that, a lifetime gift or where the disposition has a particular purpose: perhaps where the money is needed for educational needs.

In these circumstances then it will not be possible to successfully challenge the Will (on the basis the gift has already been made).

Furthermore, recent cases appear to me to reveal that the courts are loathe to apply the rule with any degree of stringency, in particular where there is evidence the gift may have  been made in return for taking care of the parent. In Kloosman v Aylen and Frost 2013 EWHC 435 Ch, the deceased made a Will leaving one third of his residuary estate to each of his three children (although one, the estranged son was to share his with his children). After making this Will, the deceased sold his house for just over £350,000 and paid £100,000 each to his daughters (but nothing to the estranged son). Each of the daughters had cared for their father but the son had not. The Court found the gifts were not intended to be part payment of the daughters inheritance. The intention was that the gifts would in part repay the daughters for their care of their father.

It was very much the same situation in the earlier case of Casimir v Alexander 2001 WTLR 939 where the parent gave his daughter a house. In this case there was evidence the daughter had been given the house in part payment for her substantial care of her parents.

Whilst then the circumstances provided by the above cases are common place, it is clear that the Courts do not intend to allow the rule to justify disputing or challenging a Will without relevant evidence. The “rule” then is weakly applied. A disgruntled beneficiary disputing or challenging a substantial lifetime gift, may fail to persuade a Court to apply it, particularly in circumstances where the gift can be seen as justifiably made.

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What happens in a Will Contest claim (how to contest a Will)

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How to contest a Will

1. This blog is an update on our earlier blog following this topic. It should assist in describing what will typically happen in the Will contest claim.

2. There are two general types of Will contest claims. Firstly a claim that a Will is not valid because of problems with its execution (it was not properly signed by the person making the Will in front of two witnesses) and/or secondly because the person making the Will did not or could not have understood what he or she was doing or were “forced” to make a Will they would not otherwise have made. Secondly where a claim for financial provision is made under the Inheritance (Provision for Family and Dependants) Act 1975. I deal with the former rather than the latter here.

3. What happens then in a claim about the validity of a Will?
(a) If in time, a Caveat is entered which stops the Grant of Probate and thereby the distribution of the estate under the disputed Will
(b) As in most cases there is likely to be a question mark over whether the person making the Will (called the “testator”) had sufficient mental capacity to make it, we will seek copies of his or her medical records and statements from persons who knew her
(c) We will ask treating doctors and nurses for their views
(d) We will seek related records, for instance, Social Services and Carers records and reports
(e) We will draft a letter of claim to include a request for any missing or otherwise unavailable records to include the Will writers file and where appropriate (if the Will has been drafted by a Solicitor) we will ask him or her questions about the formation of the Will which they are obliged to answer!!
(f) There is then likely to follow an exchange of information and/or views and depending on the strength of your claim, it is usually the case that Alternative Dispute Resolution (in other words “without prejudice” negotiations, mediation (“without prejudice” negotiations with a professional facilitator called a “mediator”) will ensue and the claim will be settled
(g) It is sometimes necessary to obtain a report from an independent Psychiatric expert and/or to seek a confirmatory opinion from an experienced Barrister in more protracted claims. Certainly a Barrister’s opinion which is favourable to you will almost always be necessary if it looks like legal proceedings will be required to resolve the dispute and you want to take on insurance to protect you against the risk of losing the claim (ie to persuade insurance underwriters to cover you for the claim) – please note insurance protection (against in effect an adverse costs order) is only necessary where Court proceedings are issued and served. This will not inevitably occur in every case and indeed most cases are resolved before this step is taken.

4. Settlement – a claim is not going to be settled without some “give and take” and whilst you may consider your case to be sufficiently strong not to merit any compromise, this is rarely in fact the case. At the very least the cost of running the claim is likely to be a persuasive factor because in Will contest claims, it is not necessarily the case that the loser will always pay – in other words the estate can become encumbered with the costs of the dispute.

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Will disputes and some recent news for Inheritance Act claims

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What happens in short marriage cases where the surviving spouse is left inadequately provided for? Some recent analysis of this is provided by Mr Justice Briggs whose very clear Judgment in Lilleyman v Lilleyman is of considerable assistance. The surviving spouse (Mrs Lilleyman – the widow) received only 10% of her late husband’s estate. Unfair or eminently sensible? Taking Mr Justice Briggs Judgment at face value, I would say it was rather fair. The late Mr Lilleyman’s sons (the product of an earlier marriage) were wholly reliant on their late father’s business. Arguably the business could not afford to be encumbered by the cost of an extravagent award to the widow (although these businesses were able to provide a seven figure pension payment to the children without any adverse effect – the children declined to give evidence of their means, possibly a sensible decision!). The court distilled what it considered to be matrimonial assets to a relatively small proportion of the estate and yet conversely it awarded getting on for half of this to the widow. Looking at it this way, the decision was quite generous. However, these decisions are very different to the situation on divorce notwithstanding the divorce “cross check” simply because it can be argued (by the widow) that her husband should be providing for her for life whereas divorce ends that legal obligation to a large extent.

It seems to me then that the critical factor here is the identification of the matrimonial assets, in particular the separation of the business assets from them. Clearly though if the Judge had found a substantial contribution to the business wealth creation on the part of the widow, they would have been included and the children’s position could have been much worse.

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Inheritance Act claims by “adult children” – a game of chance?

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I described in a previous article the difficulties faced by adult children who bring a claim for financial provision from their deceased mother or father’s estate. Historically a court would be reluctant to make an award. It would judge that adult children who were capable of earning their own living were unlikely to be sufficiently deserving to warrant further payment from their parent’s estate. Conversely, if they were not so capable and “special reasons” existed to explain their financial needs (not related to their own profligacy or lack of effort), they might succeed. Subsequent cases sought to water this down somewhat as of course there is no reference to “special reasons” in the Inheritance Act.

In Ilott v Mitson (2011 EWCA civ 246) the court went further and completely restated the balancing exercise required by section 3 of the Inheritance Act. Section 3 is in fact somewhat clear. A number of factors must be considered by the court to determine firstly whether the Claimant is deserving of financial provision and secondly, the extent.

Whilst it appears to be suggested by at least one of the lawyers involved in this decision (refer to the article by James Aspden in the 149th edition of the ACTAPS newsletter) that this makes outcomes in these cases difficult to predict, I would beg to differ. Financial need for example is easy to show and prove. Similarly the financial position of those benefitting from the deceased’s estate. Moreover other questions posed by section 3 are similarly uncontentious. For instance health,although despite difficult on going symptoms in a recent case which were well documented in his medical records, one of my client’s medical difficulties were certainly not accepted!

Basically the court will judge these factors weighing those matters that are for and against.

I am reasonably clear over the type of Claimant I would be prepared to accept, on for instance a no win no fee arrangement in an Inheritance Act claim. Further, the proof of the pudding is of course in the eating!

However, I confess that Heather Ilott would not have been a client I would have taken on and expected to win. She lacked money but then she had chosen a course of having children reliant on state benefits in support. I don’t recall any major health problems either – in short she was a very unattractive candidate.

I cannot though disagree with their Lordships decision in this matter. They could not question the discretion of the learned District Judge who decided the case at first instance. They could only question the factors he took into consideration when exercising it and given those referred to the section 3 factors I mention above, his decision could not be impeached.

Rather (and this is where I agree with Mr Aspden) a game of chance was not created by this decision but did arise from the fact that this matter went to a trial (and appeals beyond). Taking a case to a full trial is a risk and any litigation lawyer will apply a percentage of at least 10% (if not higher) to even the best of claims.

Clearly one must be cautious, very very cautious about taking even the best of claims to a trial. Mediation or negotiation from the position of strength will often yield a reasonable result but moreover CERTAINTY and I am afraid that certainty will have its price.

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Dispute resolution in will contest claims and Inheritance Act claims

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Dispute resolution – what does it actually mean? Most potential claimants consider it must mean (for them) a successful day in court. Lawyers of course are much more circumspect. They know that once a case has reached a Judge, to a degree the case is beyond their control or put it another way it is out of control! Successful dispute resolution in will dispute claims and/or Inheritance Act claims is a combination of pre litigation actions including early disclosure and formation of the claim by a carefully worded claim letter and early “alternative dispute resolution”. Yes this can involve the gathering of evidence and tetchy correspondence and sometimes this can be cathartic for both sides. However a careful evaluation of the costs and risks of any claim should really be sufficient to persuade all but the most foolhardy of litigators that a settlement and yes “certainty” is the best course is almost all cases.

What form should alternative dispute resolution take. Each case is different but I find “mediation” to be the most successful. A mediator of facilitator shuttles between the parties, cajoling, prodding and questioning. Done correctly it is highly effective. Other methods can include a simple discussion over the telephone or round a table although the latter within the context of the heat generated in will contest cases can in my experience inflame the arguments.

Another method is “early neutral evaluation” by a recognised expert in the will or inheritance dispute field – usually a Barrister. I regret that I have had a healthy experience of this in these cases but I am willing to be persuaded and the right case may very well come along in the future.

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Just what is the Golden Rule in will dispute cases and does non compliance mean a will is invalid?

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This is our reply to a recent enquiry which might assist:

Thanks for your interest in our service. Please see quote from Mr Justice Briggs in Key v Key below. In essence the “golden rule” is a touchstone for best practice. However, it does not mean than where it is not followed a Will is invalid. It may mean that it is suspect or more open to question that it ought to be if the golden rule had been followed and from that, where it is found a will is invalid, the Solicitor who prepared the Will could be vulnerable for a claim against him for the costs of the dispute. By all means come back to me if you require further help or assistance.

The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings: see Kenward v . Adams (1975) Times 29th November 1975; Re Simpson (1977) 121 SJ 224, in both cases per Templeman J, and subsequently approved in Buckenhan v . Dickinson [2000] WTLR 1083, Hoff v . Atherton [2005] WTLR 99, Cattermole v . Prisk [2006] 1 FLR 697, and in Scammell v . Farmer [2008] EWHC 1100 (Ch), at paragraphs 117 to 123.

Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.

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Costs in contentious will disputes

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    1. The general rule is that following a trial, costs will follow the event. In other words the loser pays (his own costs and the winning party’s)
    2. This is varied in probate claims or will disputes, as the Court has an inquisitorial role in relation to Wills. In other words the court has an overriding duty to determine the validity of a Will. The effect of this means that to a large extent the party’s to a will dispute claim in relation to which court proceedings have been issued and served have to allow a court to consider the questions arising out of the claim, regardless of whether they have managed to resolve their differences before a trial. Accordingly, notwithstanding an agreement and therefore settlement, the court will still demand that it considers the evidence and position carefully before any order finalising the dispute is approved.
    3. This has obvious consequences for costs as of course if the court finds the questions about the Will are justified, it may not award costs way one or the other but either allow costs to be paid for out of the estate or by the parties to the dispute, notwithstanding the outcome.
    4. The exceptions to the general rule that “costs will follow the event” in will dispute cases were articulated by Sir Gorell Barnes P in Spiers v English as follows:
    5. “In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have really been the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them. If it were not for the application of these principles, which, if not exhaustive, are the two great principles upon which the court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shown why costs should not follow the event. Therefore, in each case where an application is made, the court has to consider whether the facts warrant either of those principles being brought into operation”
Further detail will follow…
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How to contest a will – deathbed wills and mistake in execution (or what not to do when you make a will!!)

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  1. The Wills Act 1837 s9 governs its execution. A will cannot be held valid unless it complies with the archaic requirements set down thereunder, so that:
    No will shall be valid unless:-

    1. It is in writing and signed by the testator or by some other person in his presence and by his direction; and
    2. It appears that the testator intended by his signature to give effect to the will; and
    3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    4. Each witness either:-
      1. Attests and signs the will; or
      2. Acknowledges his signature
        In the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary

     

  2. In essence, a will cannot be valid unless it is signed by the testator (or by some other person in his presence and by his direction) in front of two witnesses who also in general sign the will in front of each other (note though the testator can acknowledge his signature to the witnesses and the witness(es) can also acknowledge his or her signature in front of each other and the testator).
  3. A testator on his deathbed can then direct some other person in his presence to sign his will on his behalf. This was tested recently in Barrett v Bem (Court of Appeal). The difficulty for the proponent of the will in that case is that prior to the appeal trial she had alleged the testator had signed his own will. She had changed her tune somewhat after the trial (which she lost!) alleging in fact that she signed the will at the testator’s direction. One would imagine that her credibility was open to question at this point. The Court of Appeal found against her as there was insufficient evidence the testator had made a “positive and discernible communication” that he wanted his will to be signed on his behalf.
  4. Moreover it is clear by Marley v Rawlings (Court of Appeal) that there can be no variance or watering down of the requirements for executing wills laid down by the Wills Act 1837. In this case “mirror wills” were completed for a husband and wife but unfortunately they executed each other’s will instead of their own. Unfortunately the Solicitors concerned did not notice either (no doubt the subject of a separate claim!!). Whilst it was entirely clear this was a genuine mistake on the part of all concerned, it could not be undone by any “smoke and mirrors” on the part of the court. The President of the Queen’s Bench Division, Lady Black, said she had reached her decision “with great regret” as an innocent beneficiary was effectively disinherited.
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More information about claims under the Inheritance (Provision for Family and Dependants) Act 1975

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    1. As mentioned already, whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted as valid by the Court Probate Service and can only in fact be made once a Grant of Probate has been obtained. In effect, it is a claim against the estate for financial provision. It is not a true Will contest claim or will dispute.

 

  1. A claim under the Inheritance Act is founded against a background of an individual’s right to leave his or her estate as he or she sees fit. In other words each of us has a right to leave our money and assets to any individual, charity or other corporate or legal body. Battersea Dogs Home or a hospital or charity are often chosen and in place of the individuals own children!! The courts will strain to uphold the testator’s last wishes by his Will and as described already, this can mean that claims by adult children of the deceased are much more difficult to sustain.
  2. Special reasons – an adult child really needs to show that there is a “special reason” why their claim should succeed beyond their own failure to earn sufficient for their needs and/or excessive spending beyond their means. Whilst this is denied as a factor in successive Judgments about claims under the Inheritance Act, it is really the easiest way of describing the best claims which are likely to succeed where an adult child of the deceased is the claimant. Typical examples might include adult children who have disabilities preventing them from working or whose work has been interrupted because they are looking after a child with disabilities.
  3. Of Course a child of the deceased under the age of 18 would have a good claim under the Inheritance Act.
  4. Favoured applicants under the Inheritance Act
    1. These include the spouse (ie widow or widower of the deceased);
    2. Unmarried “partners” of the deceased;
    3. Those the deceased maintained prior to his or her death, and as mentioned
    4. Their children under the age of 18
  5. The Spouse is entitled to such provision as he or she would have received if instead of death, there had been a divorce. In general terms the courts will weigh up an individual’s entitlement on divorce by varying a 50:50 split of the assets, taking into account the length of the relation, children and dependants, the accumulation of assets during the relationship and who helped achieve that.
  6. Unmarried “partners” are treated relatively generously as well. The courts will take into account when considering whether the financial provision they have been left is reasonable, their standard of living before the death.
  7. Critical points to consider
    1. There is a six month time limit following the Grant of Probate in which to bring a claim under the Inheritance (Provision for family and Dependants) Act 1975
    2. There has to be a Grant then before a claim can be issued
    3. Whilst this time limit can sometimes be extended, it should be noted the same time limit applied where an application has to be made to bring into the “net estate” assets previously owned jointly but which pass outside of the terms of the Will (eg. a jointly owned house) and that cannot be extended
    4. A claim can be brought where the deceased left no Will (ie died intestate)
    5. If the Claimant under the Inheritance Act dies during the process of claiming (ie before trial), his or her claim ceases and cannot be continued by a relative on behalf of their estate
    6. A claim can only be made against the estate of a person who died whilst domiciled in England and Wales (British citizens who were previously living abroad in say Spain may no longer be classed as domiciled in England and Wales)
    7. Overall, a claim under the Inheritance Act carries with it considerable risks for all the parties – a successful claim is likely to lead to an Order that costs of the dispute be paid by the estate
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How to contest a Will – bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975

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    1. This blog follows on from our brief guide dealing with disputes over the validity of a Will. It will probably be helpful if you read that before reading this! However in general whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted as valid by the Court Probate Service and can only in fact been made once a Grant of Probate has been obtained. In effect, it is a claim against the estate for financial provision. It is not a true Will contest claim or will dispute

A claim under the Inheritance Act is founded against a background of an individual’s right to leave his or her estate as he or she sees fit. In other words each of us has a right to leave our money and assets to any individual, charity or other corporate or legal body. Battersea Dogs Home or a hospital or charity are often cho
sen and in place of the individuals own children!!

  1. I am often approached by children of a deceased who believe they have a right to their parent’s estate. There is no such right in law!!
  2. A claim then under the Inheritance Act by one of the list of potential claimants granted the right to bring such a claim by (section 1) the Act, doesn’t necessarily lead to an award. The Court has a wide discretion in relation to such claims and will strain to uphold the wishes of the deceased. However there are particularly favoured applicants – generally the husband or wife of the deceased. The law grants a husband or wife legal rights to their spouse’s assets, rights which are upheld by the courts during a divorce. Under the Inheritance Act then the Court is obliged to weigh the financial provision a wife or husband might have received on divorce against what was left by the terms of the Will. If inadequate a claim can be made.
  3. Adult children in general are not favoured applicants under the Inheritance Act, in particular those of working age. Case law (ie old cases where decisions about financial provision for children have been made) tends to indicate that there must be a special reason (or overriding moral obligation) other than ones ordinary duty to one’s children to persuade a Court to make an award. However this is always denied by Judges dealing with these claims. Don’t believe them!! For further reading (!!!) have a look at Heather Ilott v David Mitson and others (look it up at http://www.bailii.org). This is an unusual case where it would appear an unfavourable claim (by an adult child who had no real relationship with her mother and who had survived on benefits all of her adult life) was successful. However, it is doubtful this will make much difference to the way these cases are dealt with. Closer scrutiny of that case shows the Court of Appeal were merely affirming the District Judge’s reasoning (was reasonable) – a District Judge initially heard the claim which was appealed.
  4. What is a special reason?? I will deal with this next week.
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How to contest a Will – a Noddy’s guide (no disrespect to Noddy!!)

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  1. In general your will dispute centres on either a claim against the validity of the Will or a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The latter is a claim against the estate, not a Will contest claim per se whereas a  claim against the validity of a Will does involve in our view a true contest about the Will (as opposed to the estate). We are then dealing with a will validity claim only below. Anyway enough semantics, here are some dos and don’ts.
  2. DON’T…proceed with your claim unless you are certain that if the will is declared invalid you will either inherit under the rules of intestacy (as the nearest living relative or one of them) or if applicable by earlier valid Will.
  3. DON’T….proceed with your claim unless you are satisfied you can make out a case that:
    1. The person making the Will (called the “testator”) didn’t or could not have understood/known the Will contents and/or what he or she was doing at the time;
    2. He or she was subject to pressure to make the Will a certain way (called “undue influence”);
    3. That the Will was forged or otherwise not properly executed (by the testator signing in front of two witnesses who each signed in front of each other).
  1. DO… enter a Caveat to stop the Grant of Probate but immediately afterwards please also take legal advice.
  2. DO…investigate the formation of the Will and ask for the Solicitors will files….you are entitled to do so by a case called Larke v Nugus.
  3. DO…(if you consider they might be useful to your case) apply for the deceased’s medical records (you may have a right to them independently of the Will Executor who is sometimes required to consent as well under the Access to Health Records Act at section 3(1)(f)).
  4. DO….draft a letter of claim and send it to the Will Executor setting out why you consider the Will is invalid asking for the disclosure of papers within their power and control to include all earlier Wills and Codicils and the Solicitors’ will file. DON’T ….make up any of the facts you say support your claim. In general the more honest you are the more credible will be your case.
  5. DO…AND WE WOULD SAY THIS (!!) consult with us or instruct us to help you. In general, we can act on a no win no fee basis in every case.
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Contest a Will and the role of mediation

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A mediator is a professional dispute resolver. He charges a fee to try and help disputing parties to amicably settle the disagreement between them. How is this relevant to a Will dispute/Will contest/Will claim? Surely you are paying the Solicitor to bring court proceedings to do just that?

The answer is this. It is incredibly expensive and risky to bring civil court proceedings in England and Wales given in general terms if you lose them, you could end up paying your own costs and the winning party his costs as well. On a no win no fee arrangement, you wouldn’t pay your Solicitor if you lost and you may have the benefit of ATE insurance (so called “After the Event”) insurance which would cover you so why not have your day in court?!

However, it is possible given the nature of a will contest claim that the court could consider the estate should pay the costs. In that instance your share of the estate could be considerably reduced by your own costs (and those of the other party).

Worse than this, if you haven’t considered mediation (or other so called dispute resolution activities) then regardless of the fact you have won, it may be found by the court you have behaved unreasonably (notwithstanding the strength of your case) and you may not be paid your costs at all (in which case they are likely to come from your share of the estate).

A recent case in the Court of Appeal highlighted this; Rolf v De Guerin 2011 EWCA civ 78 (http://www.bailii.org/ew/cases/EWCA/Civ/2011/78.html)

The facts are not relevant save the Defendant won at trial. However he refused to take part in mediation as a result of which he did not recover his costs from the losing party. Rolf shows us that courts will expect litigants or potential litigants to seriously consider and engage in mediation or other forms of dispute resolution. Woo betide those who ignore this and proceed into court proceedings regardless.

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