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rolling dice and weighing up the risks of contesting a will

CONTESTING A WILL – IS A THROW OF THE LEGAL DICE?

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WILL CONTEST CLAIMS – THE DANGERS OF A TRIAL

We have reported on the dangers of a trial in a Will contest claim in relation to claims for financial provision under section under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

Our blog on the subject appears at:
https://www.willclaim.com/how-to-contest-a-will-the-dangers-of-a-trial-in-an-adult-childs-claim-under-the-inheritance-provision-for-family-and-dependants-act-1975/

WILL CONTEST CLAIMS – WHY IS A TRIAL DANGEROUS?

As we previously mentioned, there is no certainty in any civil litigation. If you take your case to a trial, you are handing the keys to your claim to a Judge who forms an impression (good or bad) in an artificial environment (the court room) and who then makes a decision based on what he saw and listened to on the day of the trial. He wasn’t present when the actions which led to your Will contest claim or Will dispute case occurred. He wasn’t a fly on the wall at the time.

This was recently highlighted in the High Court when the cleaner of an elderly “rich” gentleman, won a fight over the legal validity of his Will. The lady in question was called Leonora Da Costa. The decision was widely reported (in The Times and Daily Mail):

https://www.thetimes.co.uk/article/cleaner-wins-ruling-in-fight-for-share-of-boss-s-500-000-estate-rzl3tqzxp
https://www.dailymail.co.uk/news/article-7077307/Cleaner-wins-battle-500-000-estate-man-cared-judge-overturns-will.html

On the face of it and absent knowledge of the entirety of the facts, one might have been a little suspicious of Mrs Da Costa. The gentleman making the Will had a child (a daughter) who received a relatively modest bequest in his Will compared to Mrs Da Costa, who stood to inherit the bulk of his estate. Ordinarily one might have assumed he would have favoured her with his estate. Further, during the course of working for the deceased, he paid £45,000 towards Mrs Da Costa’s daughter’s school fees. That on its own might have set the alarm bells ringing. Nevertheless, the Judge found in favour of Mrs Da Costa. She (according to the Daily Mail) exuded “warmth and kindness” and she seemed to take to the deceased, describing in The Times that their relationship became like one of “father and daughter” (although apparently not like the deceased’s relationship with his own daughter!). She successfully challenged the Will the deceased made shortly before his death which favoured his daughter (albeit after the bulk of his estate had been transferred to his nephew who was a Barrister), so that the earlier Will, under which most of his fortune was left to his cleaner became his last valid Will and Testament.

Mrs Da Costa’s determination was quite extraordinary, given as was reported in the Daily Mail, had she lost she would have “faced financial ruin”. She was a property owner with a three-bedroom house in Northwood Hills, Middlesex. Losing the case would probably have resulted in a costs order against her and her house would have been used to fund this.

I am not clear of course about the financial arrangements and it is possible she was able to obtain sufficient insurance to cover her potential losses should she have lost, but doubtful and the case isn’t reported on in that way.

This highlights again the potential pitfalls of this type of litigation but also the strength of feeling it arouses. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control. Being determined is all well and good, but not if the downside can be so catastrophic.

CAN’T I PROTECT MYSELF AGAINST THE RISK OF LOSING A WILL CONTEST CLAIM BY TAKING OUT INSURANCE?

The simple answer is “yes” but it is not a given. Your Solicitor won’t be in charge of getting you this “protection”; it will be the insurance “underwriter”. Our experience is as follows:
1. The policies are available but expensive although to be clear, the arrangement will mirror the no win no fee arrangement with your Solicitor, so that nothing is payable unless you win;
2. The potential cost of the premium might (ironically) discourage settlement – in our experience premiums have ranged from £20,000 to almost £40,000 and given they must be deducted from any sum you receive (and will not form part of a claim for costs) it is easy to see how this could prevent a settlement, where for instance, the sum on offer was little more than the premium, if not less;
3. There seems to be a limit to amount of cover on offer – in other words, the policy is unlikely to cover all of your potential losses, should you be ordered to pay the other side’s costs, on losing a Will contest claim.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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

CONTESTING A WILL – HOW PROMISES CAN OVERRIDE WILLS

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WILL CONTEST CLAIMS – HOW CAN A PROMISE OVERRIDE THE WISHES OF THE DECEASED BY HIS WILL?

A promise by the deceased to leave his or her land to someone other than the person who is named to receive it by his/her Will, can override that by “giving” that person ownership of the land without an actual transfer having taken place before death. The Will only takes effect on death and so if the “theoretical” transfer occurred before death by means of the aforementioned promise, the property is no longer available to be passed under the terms of the Will. It is if you like a lifetime gift, but by way of type of agreement which the courts will step in to enforce.

This type of lifetime gift can only be “formalised” by a Court (or otherwise by the agreement of those who might have benefitted from the land). It is comes about because of a legal concept called “Proprietary Estoppel”.

WILL CONTEST CLAIMS – WHAT IS PROPRIETARY ESTOPPEL?

The Wikipedia definition assists see https://en.wikipedia.org/wiki/Proprietary_estoppel

However in outline, Proprietary estoppel arises in relation to property if,

• someone is given a clear assurance that they will acquire a right over property, • they reasonably rely on the assurance, and,

• they act substantially to their detriment on the strength of the assurance

• it would be unconscionable to go back on the assurance

If these elements of assurance, reliance and detriment, and unconscionability are present, one remedy will be that the property will be transferred to the claimant, although to be clear, the actual remedy will be the minimum to do justice, so it may be the case the successful Claimant will receive something less than a full transfer (perhaps a life time interest).

WILL CONTEST CLAIMS – HOW EASY IS THIS TO PROVE?

This type of claim will typically arise in disputes over the ownership of a farm. There are good reasons for this. Firstly, since farming is more often than not a family business, the actual working relationships between members of the same family are usually of a casual type. Secondly, farms and farm land are disproportionately valuable (as compared to the profitability and turnover of the business) because of their unique tax advantages and the present subsidy scheme.

There is of course an inherent problem in proving these cases, since the casual nature of the commercial relationship between (usually) members of the same family, inevitably means there will be little paperwork and more often than not, personal recollections are key. This will often mean the evidence is quite weak, or, more likely than not, is contradicted by those seeking to contest the claim. This vastly increases risk and one might easily justify only a 50:50 chance of success in consequence. Nevertheless, the value of the actual property in dispute means that a fair proportion do end up in a trial. For instance in 2018 a relatively large number of these claims ended up in the High Court – 12 cases. However (and not surprisingly given my analysis above) out of the 12 cases, only 3 were successful!

I won’t dwell on the technical reasons for this, but suffice to say, there are considerable evidential hurdles to overcome in cases of this nature and a wide discretion on the part of a Judge, to accept or dismiss evidence which is provided at trial. This highlights again the potential pitfalls of this type of litigation. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control. Clearly though if you settle, your success is going to be moderated by the compromise you strike with the other party.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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