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

HOW TO CONTEST A WILL – THE DANGERS OF A TRIAL IN AN ADULT CHILD’S CLAIM UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

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WILL DISPUTE – THE DANGERS OF A TRIAL

We have previously highlighted the dangers of a trial in a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

This was recently brought into stark relief in Wellesley v Wellesley & Ors (2019) EWHC 11 (Ch). Jamie Randall of Serle Court Chambers provides an invaluable commentary at:

http://www.serlecourt.co.uk/news/article/jamie-randall-discusses-the-recent-judgment-handed-down-in-wellesley-v-wellesley-ors-2019-ewhc-11-ch
Suffice to say, the adult child (“Tara”) in Wellesley had her claim dismissed.

WILL DISPUTE – WHY IS A TRIAL DANGEROUS?

Unfortunately, there is no certainty in any civil litigation. For example, whilst you might provide what you consider to be compelling evidence of your financial needs in relation to a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, it is highly likely your opponent will also provide (what they consider to be) equally compelling evidence which contradicts your own. A Judge has to decide. Toss a coin – he may not like you (although this will never be said). He has such a wide discretion under the Inheritance Act that frankly (to an extent) anything can happen at a trial. Lawyers refer to this as “litigation risk” and apply various percentages to it when advising. If you lose, they can simply say “well we told you there was a 35% risk of failure” and that your case unfortunately fell within it. None of this helps you. 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.

WILL DISPUTE – WHAT HAPPENED IN WELLESLEY?

This, as mentioned, was a claim by an adult child under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant was the adult daughter of the seventh Earl Cowley, who left an estate valued at £1,318,403.50. She was due to receive £20,000 under the terms of his last Will which she considered was inadequate financial provision for her. There appear to have been several factual findings against her which particularly influenced the overall outcome. There had been a long estrangement which the Supreme Court in Ilott v Mitson 15 March 2017 (see https://www.supremecourt.uk/cases/uksc-2015-0203.html ) found might justify the complete rejection of the claim where the Claimant was responsible for it, which is what was found by Deputy Master Linwood here:

“….my value judgment is that on the facts as known to me today Tara’s conduct in terms of her responsibility for the extremely long estrangement for almost all of her adult life, with no reconciliation in prospect, outweighs all of the factors in her favour. I therefore conclude that the Will did not fail to make reasonable financial provision for Tara beyond her legacy of £20,000”

Other significant factual findings against her included:
1. Tara (the Claimant) could and did live within her means (in other words she didn’t actually have a financial need)
2. There was no evidence that her deceased father owed her any obligation (to support her financially as an adult)
3. Whilst Tara had ADHD there was expert evidence to the effect that this did not prevent her for working with the right support
4. Whilst Tara had made a claim partially based on her support for her disabled son, he didn’t actually live with her and there was no evidence that she had been financially responsible for him for several years.

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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HOW TO CONTEST A WILL – THE BENEFIT OF HAVING A NO WIN NO FEE ARRANGEMENT

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WILL DISPUTE – OUR NO WIN NO FEE ARRANGEMENTS

We have explained in our previous blog that we are prepared to work under a no win no fee arrangement in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

One page within our website (which also contains a helpful video) provides more detail at https://www.willclaim.com/no-win-no-fee/.

WILL DISPUTE – WHAT CAN HAPPEN IF YOU INSTRUCT SOLICITORS WHO DON’T OPERATE UNDER A NO WIN NO FEE ARRANGEMENT?

In T v V 2019 EWHX 214 (Fam) a claim was made for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975

(https://www.legislation.gov.uk/ukpga/1975/63)

by virtue of section 1(1)(e) of the Act – in other words this was not a claim by a spouse or child of the deceased, but rather on the basis that “immediately before the death of the deceased” the person concerned was “being maintained, either wholly or partly, by the deceased”. Their relationship had apparently involved significant periods of cohabitation and of financial support.

It is possible to bring an application for an interim payment by virtue of section 5 of the Act (https://www.legislation.gov.uk/ukpga/1975/63/section/5)

This is what the Claimant applied for here, but not because of her own urgent need, but rather the urgent need of her Solicitors – the application was made on the basis of her need to pay her own legal fees. Plainly, this would not and cannot occur where one is working for a client under a no win no fee arrangement. Surprisingly perhaps, it was accepted by the Defendant’s Solicitors that section 5 of the Act could be used to cover legal fees. However, on balance such an application for this purpose was very unattractive and it failed, possibly blighting the entire claim (although to be clear, this was not the final hearing, that having been listed for another time).

Mrs Justice Lieven who heard the application identified that there were two requirements under section 5 which she needed to consider. Firstly, there was the question of whether the was in immediate financial need. Secondly that the Claimant’s claim had some prospects of success.

She found the Claimant was not in immediate financial need, suggesting then that whilst lawyers might consider the payment of their costs is a justifiable need, the judiciary certainly do not! She was also concerned there was no obvious prospect of the interim payment being repaid if the Claimant lost.

Whilst it is not clear, how this failure is likely to have affected the overall claim, it cannot have helped to achieve a solution. What is clear though is that the absence of a no win no fee arrangement in this will contest claim, worked against the interests of the Claimant. Whilst not stated, there was, one suspects, a difficulty with the case being run to a trial, absent the payment of some of the Claimant’s lawyers costs. Once this had been identified by the Defendant’s legal team (and it must surely have been made obvious by dint of the application for an interim payment), the Claimant was always likely to be on the “back foot”. Of course, in contrast, one might also argue a no win no fee arrangement drives the party having the benefit of it to a settlement – however, one can clearly see the risk inherent in court action for those who cannot embrace a settlement on the basis of this claim. With a settlement control is maintained. Once control is ceded to a Judge, there is a considerable risk of failure.

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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Challenging a will on grounds of mental capacity will inevitably mean considering the golden rule

HOW TO CONTEST A WILL – DOES HAVING A MIRROR WILL CREATE A BINDING OBLIGATION

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DISPUTING A WILL – IF A COUPLE HAVE MIRROR WILLS DOESN’T THAT MEAN THEY CANNOT BE CHANGED?

Firstly, what is a mirror Will? Put simply it arises when a couple, usually a married couple, have prepared Wills (usually at the same time) where each separate Will is a reflection of the other. A typical example might be a Will prepared by the wife, leaving the entirety of her estate to her husband but if he died before her, then to their children; with the husband’s Will leaving the entirety of his estate to his wife, but if she died before, then to their children. It is often suggested that this means the Will cannot be changed.

Unfortunately, this is not correct. Their Wills can be revoked at any time and importantly, this can and does (it seems) sometimes happen after one of them dies. It is plain from case law that a disappointed beneficiary, who should have benefited from the estate of the survivor of two individuals who had prepared mirror Wills (usually one or more of their children), can only recover his or her rightful share, if there is evidence of an agreement between the two mirror Will makers not to revoke. The oral evidence from the disappointed beneficiary is unlikely to be enough simply because his/her evidence is going to be largely discounted because it is “self-serving”. Independent evidence is going to be required which is usually a form of words in the mirror Wills themselves along with the lines that they have each been executed to reflect the other and with the agreement that they shouldn’t be revoked or changed. A case in point is Walters v Olins (see https://swarb.co.uk/walters-v-olins-ca-4-jul-2008/).

DISPUTING A WILL – HOW DO MIRROR WILLS CREATE AN ENFORCEABLE AGREEMENT NOT TO REVOKE OR CHANGE A WILL?

As mentioned, there must be evidence of an agreement not to revoke or change the Will. This doesn’t prevent it from being changed or revoked as the nature of a Will in English and Welsh law means that it can be changed or revoked at any time. However, it provides the disappointed beneficiary with the ability to enforce his or her right to a share of the estate which was promised to them.

In a Will contest or Will dispute claim then, it is possible for the disappointed beneficiary to enforce the agreement within mirror Wills whereby he or she should have inherited. The Courts regard the survivor of two individuals who had agreed not to change their Wills, as the Trustee over a Trust containing the property which was supposed to be subject to the agreement.
This was confirmed by Dixon J in Birmingham v Renfrew (see https://swarb.co.uk/birmingham-v-renfrew-11-jun-1937/) and the quote below:

‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . .”

In other words then the disappointed beneficiary can sue the estate of the last survivor of two individuals who had agreed not to revoke their Wills (but had done so) with a view to enforcing the terms of the trust which sheltered the property he/she should have benefitted from.

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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preaction disclosure of documents is a vital part of a will dispute

HOW TO CONTEST A WILL – WORKING UNDER A NO WIN NO FEE ARRANGEMENT

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DISPUTING A WILL – WORKING UNDER A NO WIN NO FEE ARRANGEMENT, WHAT DOES IT MEAN?

We have already described that we are prepared to work under a no win no fee arrangement to dispute or claim against the legal validity of a Will (but also in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

Our page (which also contains a helpful video) sets this out in detail at https://www.willclaim.com/no-win-no-fee/.

In fact and to be clear, we carry out almost the entirety of our work in this field (in relation to will contest and will dispute claims) under no win no fee arrangements.

But what is a no win no fee arrangement and how does it work in relation to Will dispute and Will contest claims? It is simply an agreement to carry out this legal work on the basis that we will not charge a penny unless we win the case. A “win” then triggers the right to charge our fees.

A “win” is not just an outright win following a trial where the losing Defendant is ordered to pay our fees, it also arises if there has been an agreement before the trial (and usually in fact before there are any court proceedings at all!) to compromise the claim in some way.

DISPUTING A WILL – WHO THEN PAYS ONCE YOU WIN?

If the case is won at trial then the loser will be ordered to pay the winner’s costs. However, given at least 99% of the claims we will deal with under a no win no fee arrangement do not go to a trial but are resolved by us well before, then put simply the terms of the settlement agreement determine who pays. As we cannot resolve (or “settle”) a case without the consent of our client, then he or she must agree to this question as well. We cannot simply decide this off our own back.

What actually happens is that in 99% of cases there is no trial as mentioned. Instead an agreement or settlement is reached and our costs are either paid directly as part of that agreement or (where it has been agreed that a lump sum of say £100,000 is paid) out of the settlement figure.

It is never the case that the amount we will accept for our costs exceeds the settlement sum since our client would never agree to this and we would never allow it to happen. If necessary our costs can be compromised to facilitate an appropriate agreement.

DISPUTING A WILL – WHAT HAPPENS IF THE CASE IS “LOST”?

We have already explained that over 99% of our cases do not go to trial and that in fact we do not issue court proceedings at all for the vast bulk of them. Whilst we will often take on a
will contest or will dispute claim when we don’t truly know we will be able to win it, we are usually able to determine its viability within a very short space of time. For instance, where a claim is being made that the deceased didn’t have legal testamentary capacity in a will dispute claim or will contest claim, the question is usually resolved very quickly by the deceased’s medical records. If there is no record of an issue with capacity in the deceased’s medical records at the time the Will was made, then the claim is quite simply dropped. There will be nothing to pay at that point as we won’t have “won” it.

Whilst it is possible to obtain ATE (“after the event”) insurance to protect against the risk of losing at a trial (whereby the loser pays the winners costs), it is not advisable to consider that a trial on a given day before a Judge who will otherwise have never met you before and who could be swayed by matters that are not within your control (such as the Defendants witnesses), is going to offer you the best solution. It will not offer you the best solution except in the most exceptional of circumstances and our advice and professional care will almost certainly be guiding you towards a better solution, which is usually a settlement agreement in some form.

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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wax seal on a document

HOW TO CONTEST A WILL – BRINGING A CLAIM OUT OF TIME

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DISPUTING A WILL – IS IT POSSIBLE TO BRING A CLAIM OUT OF TIME?
Firstly is there a time limit? The answer is no in relation to a claim against the legal validity of a Will (eg. a Will contest claim that the Will isn’t valid because it wasn’t signed by the person making the Will in front of two witnesses who also signed, because he or she didn’t understand what was going on or because he or she was forced into it).
The answer is yes where a claim is being made for financial provision by a near relative, spouse or dependent person. This sort of Will dispute is a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975. The person bringing the Will claim is not challenging the legal validity of the Will; put simply he or she is saying its contents are unreasonable given his/her financial and health issues. This type of Will dispute claim does have a time limit which is six months from the date of the grant of probate.

IS IT POSSIBLE TO SEEK AN EXTENSION OF THE SIX MONTH TIME LIMIT IN RELATION TO CLAIMS FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975 (“the Act”)
The simple answer is yes! An application can be brought under section 4 of the Act (see https://www.legislation.gov.uk/ukpga/1975/63/section/4).

The court has a discretion to allow a financial provision Will contest claim to be brought after the six month period following the grant of probate has expired.

WHAT IS A GRANT OF PROBATE AND WHY IS IT NECESSARY?
A Grant of Probate is the licence to the Will Executor (the “Will Executor” is the person nominated by the person making the Will to take responsibility for the administration of her/her estate) to start to call in the estate assets and to distribute them in accordance with the Will instructions. The government has to have some policing role to check that the Will is a genuine document and because it wants in some circumstances to claim tax from the estate (if it is big enough).

IN WHAT CIRCUMSTANCES WILL THE EXTENSION OF TIME BE GIVEN?
In Will contest claims to date, it has generally been ruled by the Court that an extension would only be granted within at worst a few years after the expiry of the six month time limit. There are practical reasons for doing so. For instance, once the estate has been distributed it is likely to prove impossible to recover sums that might be used to pay for the successful financial provision claim. However a key element of any successful application for further time will always be evidence that absent the issue of one bringing the claim out of time, it would have been successful. This essentially filters out all but the most compelling cases.

In an interesting recent development a Court has allowed a claim for financial provision to proceed no less than over 25 years out of time!

The case in question is called Mrs Shantabai Bhusate v Dr Mangala Patel and others (2019) EWHC 470 (Ch) https://www.lawgazette.co.uk/download?ac=33428

The Claimant was given permission to proceed on the following grounds:
1. The merits of her claim under the Inheritance Act were found to be very strong;
2. The delay in bringing the claim could be explained and in particular was caused by matters which were outside of her control (in other words it wasn’t her fault);
3. There was evidence that the Defendants to her claim were at fault because they obstructed the sale of a property which formed part of the estate (they now stood to benefit for their obstructive behaviour by denying her the prospect of bringing her claim out of time);
4. If the application weren’t granted the Claimant would have had no remedy at all and she ran the risk of becoming homeless.

Whilst such a result in a Will contest claim might encourage certain historical applicants, it was I suspect something of a one off. It seems highly unlikely that most claims of a similar age will succeed.

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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A barrister's wig

HOW TO CONTEST A WILL – DEFENDING A SPURIOUS CLAIM (HOW TO CHEAPLY REMOVE A CAVEAT)

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WHAT HAPPENS IF SOMEONE MAKES A COMPLETELY UNMERITORIOUS CLAIM AGAINST THE LEGAL VALIDITY OF A WILL
If such a claim is made (that a Will is invalid) and either no grounds to support such a claim are provided or those that are have no foundation in law or are entirely without merit, then typically a Caveat might have been entered to prevent the lawful administration of the estate whilst the claim is concluded. We have come across a wide range of such claims where it appears impossible to remove the Caveat without recourse to expensive court proceedings in the High Court.

One has to say that it is always possible to apply for an interim Grant so that the estate is administered but not actually distributed which is sometimes necessary to “protect” vulnerable estate assets (such as a house) which might otherwise considerably deteriorate over time.

WHAT SORT OF CLAIMS ARE MADE WHICH APPEAR TO HAVE NO MERIT
It is often assumed by disappointed beneficiaries that just because they are “family” or “blood relatives” they have an automatic right to inherit. This is not the case for English and Welsh estates as in this jurisdiction, there is almost complete testamentary freedom, jealously guarded by the Courts in England and Wales.
Another related claim is that the Will is unfair because (for instance) children of the deceased didn’t receive equal shares. Again, freedom of testamentary disposition means this is no a ground which can found a claim in law.

Finally, it might simply be a claim (for instance) that the Will is invalid because the Testator (the legal term of the person who actually makes the Will) didn’t have legal testamentary capacity, but where the deceased’s medical records reveal no such issue or the Solicitors involved in the formation of the Will took steps to have the deceased assessed for his capacity, prior to the Will being completed, a test which he or she passed.

IF THE CAVEAT IS IN PLACE THE ADMINISTRATION OF THE ESTATE IS PLACED ON HOLD
The existence of a Caveat stops the legal distribution of the estate and therefore holds up its lawful administration. It is an extremely powerful device and its use can be abused in Will dispute, Will contest cases and in Will Claims in general. In fact, we receive requests to use the Caveat in this way notwithstanding there is little or no evidence to sustain such a claim, several times a month.
Surprisingly then, it is much rarer to receive a request for assistance to actually remove a Caveat where there is no justifiable claim. There are though little used devices which can be deployed to remove them reasonably “cheaply” and without the need for full-blown legal proceedings (commonly called CPR 57 claims) in the High Court Chancery Division. Those can cost tens of thousands of pounds.

Firstly (and this is in fact well-known), the Caveat can be “warned”, which is a process wherebys the person who entered the Caveat (called the “Caveator”) is asked to confirm very briefly the nature of their complaint against the legal validity of the Will. If the Caveator doesn’t enter an “Appearance” explaining in very brief terms, the nature of their complaint, then a sort application can be made to the Probate Registry for the Caveat to be removed.

If the Appearance is entered, then as will quickly be seen, only the very briefest details of the nature of the Will dispute contest are required and no evidence (eg. that the testator lacked legal testamentary capacity and didn’t know and approve the contents of his/her Will). The Caveat then becomes permanent which means in practice that the Caveator doesn’t then have to renew it every six months and pay the fee to do so (which is currently £20).

Once permanent, it can still be removed with agreement and without an expensive High Court Chancery Division claim. However, even absent agreement, if the Caveator still takes no steps to progress his or her claim and thereby appears to be relying on the delay in the estate administration caused by entry of the Caveat to bring about an agreement, it is still possible to force him to “put up or shut up”. A Summons for Directions can be issued in the Probate Registry to obtain an Order that unless he or she issues a High Court Chancery Division claim by such and such a date, the Caveat is struck out.

As I say, this is particularly effective is disposing of the most unmeritorious claims in Will dispute/will contest cases. It is not a good idea where the claim has some chance of succeeding!!
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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piles of money to illustrate what is reasonable financial provision after teh case of Wooldridge v Wooldridge

HOW TO CONTEST A WILL – DOES A RICH BROTHER DESERVE A SHARE OF WILL?

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HOW TO CONTEST A WILL – DOES A RICH BROTHER DESERVE A SHARE OF WILL?

As reported in The Times (https://www.thetimes.co.uk/article/our-rich-brother-doesnt-deserve-equal-share-of-will-say-sisters-dlrhwl9vf) two sisters considered their rich brother didn’t deserve a share of their late mother’s estate which was worth 1.5m. Their mother had split the estate equally but according to The Times article he should have been entitled to less than the third he had been left as “he is richer than they are”.

The Will in question was made in 2013. However their mother then went on to live another three years, dying in 2016 aged 90. It had been drawn up within months of the death of her husband and nine days after a fall which had left her “vulnerable”.

The challenge appears to have been two-fold (although the article may not have reported on the case in its entirety – so a “health warning” is applied to this particular will contest claim). Firstly a lack of knowledge and approval was alleged (akin to claiming a lack of mental capacity). It was also claimed the Will wasn’t properly witnessed in accordance with section 9 of the Wills Act 1837 (whereby the person making the Will must have her signature witnessed by two witnesses who also sign it – see http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9).

There had been a previous Will made in 2012 whereby the brother had been left 20% of his mother’s estate and the sisters, 40% each. So far as the brother was concerned then, this was an argument over approximately £200,000. Whilst a significant sum to most ordinary people, it is not inconceivable that the costs (to both sides) of running such a defence to the will contest/will dispute claim will exceed £200,000 and by a considerable amount. The first question mark then in my mind is that when considering risk v award, the trial was justified. I would say not. However, what we don’t know is what has gone on in the background – whether, for instance, ADR (“alternative dispute resolution”) was attempted but failed or was even refused. The problem here is that there was really not very much difference between the parties positions so bizarrely that in itself might have worked against sensible settlement discussions.

The impression from the article is a claim was being made that the deceased, “weakened” by the death of her husband and perhaps her declining health was taken advantage of by the brother. Again, though this is an impression only – we don’t know the full facts. However, the Barrister representing the sisters is said to have alleged that the brother “took control” of their mother’s finances and claimed (to the brother and presumably during cross-examination or summing up) that “You wanted your sisters out of it”. The obvious weakness in that position is firstly, if such control was in fact correct, why weren’t the sisters disinherited entirely rather than their share diminished to provide for each of the children equally (an equitable position on its facts anyway since of course no one can account for the future and financial falls can occur to anyone). Secondly, if as it appears, capacity for the most part was retained by the deceased in relation to her Will, then how, if the Will change

was due to pressure only, was it possible for the brother to maintain this for three years until her death. In other words she had plenty of time to realise her mistake and rectify this.
It will be interesting to find out the result of this will dispute and will contest claim and whether the Will is revoked.

As a final point, which we have mentioned before in the context of Will dispute and Will contest claims, there is no legal basis for a claim that a Will is unfair as a factor against its legal validity. In any event, what is and what is not unfair in Will dispute claims, is a matter of perspective and subjectivity. This is not something a Judge could be expected to rule upon in a Will contest and will dispute 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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how long will it take to resolve a will dispute

HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

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HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

In my previous Blog on this topic, I described that there are limited grounds to dispute or contest the validity of a Will and how an adult child can do it by bringing a claim for financial provision from his or her parent’s estate, pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63)

I described the difficulties; an adult child seems to have to bring more to the table other than simply, “here I am, I am poor, therefore the estate must provide”. A moral claim justification has been held to apply, but that too has been watered down as there is no mention of any such requirement in the 1975 Inheritance Act. Nevertheless, it has been described as an element of a Will contest and Will dispute claim under the Inheritance Act 1975, so one cannot ignore it.

Given so, what does “moral claim” in Will dispute/Will contest claims under the Inheritance Act 1975 mean? It is difficult to be specific as each claim is completely different, but having discussed this with Barristers and from my own experience, I can say with reasonable certainty that it appears to involve:

• Broken promises by the deceased
• Conduct on the part of the deceased such as caring for the deceased for a considerable period and at considerable cost, but then finding oneself disinherited
• Conduct on the part of the deceased which might have led to the adult child finding himself (or herself) poor and in financial need (eg. abuse during childhood and/or a failure in parental control leading to health issues once the child became an adult)
• In other words some fault or action on the part of the parent which has helped caused his or her adult child to have some financial need

As already described, whilst useful, it is not absolutely necessary to bring forward a “moral claim” to prove your case for contesting the Will and/or disputing the Will under the 1975 Inheritance Act (as an adult child). Act”). For reference see Nahajec v Fowle [2017] Lexis Citation 270 (https://swarb.co.uk/nahajec-v-fowle-misc-18-jul-2017/) and Ball v Ball [2017] EWHC 1750 (https://swarb.co.uk/ball-and-others-v-ball-and-others-chd-2-aug-2017/).

The learned judges in Nahajec and Ball both make reference to Lord Hughes’s finding in Ilott v Mitson (https://www.supremecourt.uk/cases/uksc-2015-0203.html) (at [20]) that a “moral claim” is not a precondition of an award. As HHJ Matthews summarised the point (Ball v Ball), “need” is still not enough on its own and that there must be some further factor,
which may be a “moral claim” or some other circumstance. The ultimate question is whether it is reasonable for the applicant to be left without maintenance.

In Nahajec the adult child’s claim succeeded. The applicant was age 31, in straitened financial circumstances (working on zero hours’ contracts, with debts (£6600 – see para 94(c)), had an aspiration to train as a veterinary nurse and had no teenage or adult relationship with her father the decease save for a reconciliation during two years 8 years before. The lack of relationship was despite efforts by the applicant to make contact (see para 63 of the judgment). The estate with a net value of £265,710 was left to a friend of the deceased, the defendant, who also had money problems (see para 90). The award was £30,000. In addition to finding that the applicant’s desire to train as a nurse was a factor which made the lack of any provision unreasonable (at para 88), HHJ Saffmann found that so also was the fact that the applicant had sought a relationship (at para 86).

In Ball the net estate was £157,000 (see para 98). The deceased had 11 children and a grandson (see para 1). There were 3 claimants and so the difference between the estate being divided 12 ways (i.e. with the claimants included equally) or 9 ways (without the claimants) was only £4,361. The deceased, who was the mother, had excluded the claimants because they had reported their father to the police for sexual abuse (para 2). HHJ Matthews refused to characterise this decision as bad behaviour taking into account the standards of the time it was made (para 82). There was no significant discrepancy between the means of the claimants and the defendants (para 84) and an award could make little difference anyway (para 86). No award was made.

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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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

HOW TO CONTEST A WILL – HOW HARD IS IT FOR AN ADULT CHILD TO BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

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HOW TO CONTEST A WILL – HOW HARD IS IT FOR AN ADULT CHILD TO BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

There are limited grounds to dispute or contest the validity of a Will. By far the most common is a claim by an adult child for financial provision from his or her parent’s estate, pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63)

If brief, in England and Wales, a parent is not obliged to leave his or her estate to their child – they can leave everything to a stranger if they see fit. This is called “freedom of testamentary disposition”. However to eliminate the difficulties this can cause (eg. where a parent dies leaving minor children disinherited) Parliament legislated to create an Act called, as mentioned, the Inheritance (Provision for Family and Dependants) Act 1975 which could enable a Court to make financial provision for, for instance, a needy child. A minor child falls within the category of so-called favoured applicants under the Act (along with wives or husbands!). A claim by an adult child is much more difficult to justify in Will claim, Will contest or Will dispute claims. Quite simply the law (Judges) seem to regard adult children as inherently independent and therefore capable of providing for themselves. Reluctantly it seems courts have come to the realisation that many are not and will never be capable of being completely independent. In this way then and in Will contest and Will dispute claims, adult children began to find they could succeed in such claims under the Inheritance 1975 Act.

The issue was aired in great detail in the UK Supreme Court in Ilott v Mitson (The Blue Cross and others)( https://www.supremecourt.uk/cases/uksc-2015-0203.html). The conclusion? Yes adult children can bring such a Will claim and/or contest a Will in this way, but the person who made the Will could provide sufficient justification for disinheriting his child to defeat such a claim where the child was not altogether blameless (for instance for an estrangement) or if the child couldn’t establish a “moral” justification to his/her claim ie something more than just a financial ground (the usual reason given is that “I am poor, in need, and therefore I must be entitled to a share of the estate). The Court said “no”, that on its own is not sufficient.

However a succession of cases both before and after Ilott above have stated in fact there is no moral requirement in the 1975 Inheritance Act in relation to Will dispute and Will contest claims. This is absolutely right. The grounds for any claim under the 1975 Inheritance Act must reflect the issues mentioned by section 3

(1). Under this section a Court considering such a claim, must consider a relatively limited menu of grounds justifying an application for financial assistance from a deceased parent’s estate. I have cut and pasted the relevant grounds below:

(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.

There no mention of moral claim anywhere. Quite obviously then, this helps creates considerable risk for each side to a Will contest and Will dispute claim, since the position seems so uncertain. It has helped to encourage these claims (by adult children). I consider this further in my next blog.

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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5 things to know about testamentary capacity

HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

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HOW TO CONTEST A WILL – THE CAPACITY REQUIRED TO MAKE ONE

There are limited grounds to dispute or contest the validity of a Will. By far the most common (which is usually the easiest to prove), is that the person making the Will (called the “testator”) lacked sufficient mental capacity to do so.

Dispelling the myths
We are often told that a particular individual cannot have had sufficient mental capacity following a diagnosis of dementia or Alzheimer’s disease. This is not necessarily the case. In reality very little “mental capacity” is required to have sufficient capacity to make a valid Will. In relation to a Will dispute or Will contest claim where the Will is being challenged, it is simply a question of degree. For instance, how bad is the loss of memory? A diagnosis of mild dementia is unlikely to lead to a successful challenge against the legal validity of a Will, unless that is, there is a severe impact on decision-making.

The primary test of capacity in Will dispute and Will contest claims
Is there a primary test of capacity in Will dispute and Will contest claims? Yes there is. It is in a very old case called Banks v Goodfellow (https://swarb.co.uk/banks-v-goodfellow-qbd-1870/) where the primary legal test of capacity was stated by Cockburn CJ:

It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.’

Whilst 1870 is a long time ago, this “test” still stands today!

The key elements of the capacity test in Will dispute and Will contest claims
So what are the key elements of the capacity test in Will dispute and Will contest claims?

1. That a testator shall understand the nature of the act and its effects

This ought to be straight-forward. The testator or the person making the Will must understand the purpose of the Will and what it will do; in other words that the Will governs what happens to their money and property after they die.

So far so good. But….

2. Shall understand the extent of the property of which he is disposing

This is one of the most difficult areas in Will dispute and Will contest claims where many of the challenges against the legal validity of a Will are made. The context is this. An aged individual making a Will close to death is often not in apparent control of their finances and often because their health issues (eyesight, hearing and/or mobility) make it impossible for them to do so. PLEASE NOTE I have been careful here not to mention a condition which might adversely affect their so-called mental capacity. So, where one is challenging the legal validity of a Will, it is immediately possible to spot a difficulty where there is physical incapacity but not necessarily mental incapacity in relation to a Will dispute claim. The issue is that the individual with a physical incapacity and who has handed over the control of his or her finances to someone else because of their physical incapacity, might not then have an immediate and comprehensive understanding of the extent of his or her property even though mental capacity is retained. With this in mind, Judges appear to have watered down the requirement to actually understand the full extent of his or her property:

The requirement to know the extent of one’s estate does not mean knowing its value down to the last penny. Furthermore, evidence is not necessarily required of a testator’s actual understanding, but rather of a capacity to understand these matters. Legally, capacity can be acquired via suitable explanation. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1925203/)

3. shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties ..

This is usually the most fertile area of disputes and with some evidence of a strange or unusual decision by the person making the Will (who for instance leaves his or her estate to a neighbour or distant and hitherto unknown relative or “friend”), is often the source of considerable debate in Will contest and Will dispute claims. Afterall a “disorder of the mind” might only be a mild dementia or other mental health condition such as depression. The problem, as ever, is in proving it has affected the Will makers decision making process. Although some evidence might point one way, it is almost guaranteed that the opponent or defendant to the claim will produce evidence pointing the other which creates considerable risk for the individual challenging the legal validity of the Will on this basis.

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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Applyoing for probate can seem daunting - we can offer light at the end of the tunnel

WHY DID THE EARL’S WILD CHILD LOSE HER CLAIM TO A SHARE OF HIS £1.3M FORTUNE

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This unfortunate case is reported in The Times and a number of papers. An earl’s daughter who “hated” her family’s aristocratic lifestyle has lost her attempt at claiming a larger share of his £1.3m fortune (she appears to have been left only £20,000 by his Will and she might well have lost that to legal costs as well).
https://www.thetimes.co.uk/edition/news/earl-s-wild-child-daughter-lady-tara-wellesley-loses-claim-to-share-of-1-3m-fortune-d5k02hhl8

In The Times report a number of facts are mentioned which seem to have played a part in her losing the will contest claim that she brought. For instance:
• A “drink and drug lifestyle”
• A mutual estrangement (and a finding by the court that it was “due to Tara’s conduct alone”)
• She had “hated the aristocratic life” and the family’s “superior attitudes”
• Her disruptive “behaviour”
• “years of wasted assistance” by her father

1. WHAT SORT OF WILL DISPUTE CLAIM WAS THIS AND WHY DID IT FAIL?
This is most likely to have been a claim under the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63
In England and Wales there is freedom of testamentary disposition. This means that a mother or father can leave his or her estate to anyone (not necessarily their children). Lady Wellesley appears to have been a victim of this. Whilst she was left something it seems (£20,000), it was only a relatively modest part of this large estate.
The Inheritance Act ’75 referred to above gives the Court discretion to make additional awards to disappointed beneficiaries who are close to the deceased. It can be seen that this discretion can be influenced by lifestyle, the sympathy of the Court towards the Claimant and most importantly to the question of whether an estrangement was the cause and if so whose fault it was. In this instance it would appear the Court took against Lady Wellesley in a material way so that her will contest claim failed.

2. THE SIGNIFICANCE OF A JUST CAUSE FOR THE DISINHERITANCE IN A WILL DISPUTE AND WILL CONTEST CLAIM
This is clearly demonstrated in Lady Wellesley’s case. The Judge seems to have found the estrangement “was due to Tara’s conduct alone”. It made the Judge extremely reluctant to interfere with the Testator’s freedom to leave his estate as he wished. The leading case (in will contest claims of this type) of Ilott v Mitson 2017 supports this approach:
https://www.supremecourt.uk/cases/uksc-2015-0203.html
However it also says the court should be cautious in attributing blame for the estrangement to either party, which also makes it a little confusing. What we learn from this in will dispute and will contest cases is that there is a significant risk attached to each side of the will dispute. To be clear, the risk, as in all civil claims of this type, is that if the claim is lost, the loser will pay the winner’s costs which can be significant – in excess of £50,000 in cases of this nature (and of course the loser will have to pay his own costs too unless he instructed his lawyers under a no win no fee arrangement).

3. HOW IS IT POSSIBLE TO GUARD AGAINST THE RISK OF LOSING IN A WILL DISPUTE AND WILL CONTEST CLAIM OF THIS TYPE
I list the possible options, starting with the most important:
• Negotiate a resolution – if you go to trial you give up control to an individual who only meets you on a given day in artificial circumstances (at a trial) and who may not actually like you, your lawyers and your case
• Your lawyers should advise you on costs and risk as the claim proceeds – listen to them!
• It is possible to buy an element of protection against the risk of losing by taking on ATE insurance (“after the event” insurance) which can operate in the same way as a no win no fee arrangement; however it has a number of pitfalls:
– Whilst only paid if you win, the premiums can be huge (for instance £20,000 to £40,000 is not uncommon) and will come straight off any money you win (conversely, you won’t pay anything if you lose);
– The protection provided might be limited (for instance in a recent matter I obtained protection amounting to only about £46,000 including our own disbursements which was likely to be considerably less than the likely costs of the Defendant which were predicted to exceed £75,000)
– It might encourage you (and the Defendant) to a trial when really you should be settling (negotiating a resolution)
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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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.

CONTESTING A WILL UNDER A NO WIN NO FEE ARRANGEMENT – WHICH WILL DISPUTE CASES ARE WE MOST LIKELY TO WIN

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1. DO YOU WORK ON EVERY SINGLE WILL DISPUTE CASE WHICH IS REFERRED TO YOU?
We will only work on a will dispute and will contest case where we think we can win it. This means that the no win no fee arrangement in will dispute and will contest claims operates as a natural filter to ensure that our clients do not waste time in dealing with a contest over a will or estate, where there is no or little chance of success.

2. BUT HOW CAN YOU BE CERTAIN THAT YOU CAN WIN A WILL DISPUTE AND WILL CONTEST CLAIM AND WHEN?
The simple truth is that when a potential client approaches us with a dispute about a will and/or estate, we don’t know whether we can win the consequent will dispute and will contest claim, since we are not able to test the facts and the potential client is unlikely to have the significant paperwork. We are completely reliant on what the client tells us, although it is possible for us to supplement the information that they provide about the will dispute and will contest claim they are involved in with some research of our own. For instance, we (and indeed anyone) can carry out the following searches:
1. “Google” in relation to the addresses of relevant properties and other matters;
2. The government search facility for probate records (to obtain copies of the Grant and Will) (https://www.gov.uk/search-will-probate);
3. The Land Registry to determine who owns a property and when it was sold (https://www.gov.uk/search-property-information-land-registry).
These often reveal telling amounts of information about key facts in the will dispute and will contest claims.
Ultimately, if our client or potential client exaggerates key facts concerning the will dispute and will contest claims, then it is likely that our judgment about whether it can be won will be adversely affected and the will claim is likely to fail as a result. Unfortunately this can happen, in particular where the individual concerned has learned from earlier failed enquiries with competitors, which facts are helpful and which are not. Unfortunately, it will not assist in determining the eventual outcome as the most important filter of flawed or exaggerated claims is the claims process itself and in particular the opposition or potential defendants.
It follows that when we decide to take on a will claim, will dispute and/or will contest claim, we don’t have all of the necessary information at hand to be certain of a win. Clearly there will have been enough relevant material to confirm the will contest claim can be won. However, it will become clear within a matter of months at the most, whether a win is likely
to be certain. It follows there will be a number which we decide cannot be won at which point the claim is stopped.

3. SO WHAT FACTS AND/OR OTHER MATTERS ARE LIKELY TO PERSUADE YOU TO TAKE ON A WILL DISPUTE/WILL CONTEST CLAIM UNDER A NO WIN NO FEE ARRANGEMENT?
What follows is a very general list of facts and matters which might persuade us that a particular will contest and will dispute claim is likely to be won:
• We are being told the truth about the will dispute claim (we trust the client!)
• There is real value in the will dispute claim (we cannot survive otherwise regardless of your views of the merits of Solicitors earning money) so the estate has to have a reasonable value
• In a will claim where the key contention is that the will is not legally valid there is likely to be supporting and weighty independent evidence (for instance the evidence from medical records and/or of treating doctors that an individual had Alzheimer’s or Dementia of sufficient severity at the time the will was made). Self-serving evidence from our client and/or his or her acquaintances is unlikely to be helpful unless it points us to possible independent evidence from elsewhere
• A case where there is large degree of discretion (leeway) in the hands of the Court as to the outcome (for instance, a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63)
Why? Quite simply because this creates a considerable degree of risk (for each side), it is more likely to be possible to achieve a settlement
• The potential client to the will dispute and will contest case has nothing to lose as well (because he or she has no assets) and is determined to pursue the claim because this will mean it is more likely to be possible to achieve a settlement (your opponent in this case could be faced with ever increasing costs and associated risks which are never likely to be recoverable). However this does not mean we won’t work for someone who has assets! Every case has elements which are positive and negative; we have to form a view on the balance of the facts before us, so please don’t be put off approaching us with your enquiry!

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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contesting wills

CONTESTING A WILL UNDER A NO WIN NO FEE ARRANGEMENT – YOUR QUESTIONS ANSWERED

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1. WHAT PERCENTAGE OF YOUR WILL DISPUTE CLIENTS DO YOU WORK FOR UNDER A NO WIN NO FEE ARRANGEMENT?
We act for about 99% of our will dispute and will contest clients under a no win no fee arrangement.

2. WHAT DO YOUR WILL DISPUTE AND WILL CONTEST CLIENTS HAVE TO PAY UPFRONT AND/OR AS THE CLAIM PROCEEDS UNDER A NO WIN NO FEE ARRANGEMENT?
Our will dispute and will contest clients do not pay us a penny unless we win the will dispute and will contest claim. If we don’t win the will dispute and will contest claim they don’t pay us a penny.

3. WHAT HAPPENS IF YOU WIN THE WILL CLAIM AND YOUR WILL DISPUTE AND WILL CONTEST CLIENTS HAVE TO PAY YOUR FEES UNDER THE NO WIN NO FEE ARRANGEMENT BUT THERE IS A HOUSE TO SELL (FROM WHICH YOUR FEES WILL BE PAID)
We do not require our will dispute and will contest clients to pay us our fees unless and until the house is sold (unless, for some reason, they are unreasonably refusing to agree to the sale – an unlikely scenario).

4. WHAT HAPPENS IF YOU WIN THE WILL CLAIM FOR YOUR WILL DISPUTE AND WILL CONTEST CLIENTS UNDER A NO WIN NO FEE ARRANGEMENT BY WHICH SETTLEMENT TERMS HAVE BEEN AGREED WITH ANOTHER PARTY WHO SUBSEQUENTLY REFUSE TO COMPLY (RENEGE ON THE AGREEMENT)
Where we have reached an agreement for a will dispute and will contest client (which is usually called a “settlement” by will contest Solicitors) and the other party fails to honour his or her promise by the terms of the agreement, we will undertake enforcement proceedings to force compliance. We will usually either reach an agreement with our will contest and will dispute client which limits our costs in these circumstances or ask the party at fault to pay (or a combination of these actions). Every case is different, but we aim to do our best to limit or avoid completely any additional costs to our will dispute and will contest clients should this unfortunate circumstance arise.

5. HOW DO YOU CALCULATE YOUR FEES WHEN YOU ARE WORKING FOR YOUR WILL DISPUTE AND WILL CONTEST CLIENTS UNDER A NO WIN ARRANGEMENT AND YOU WIN THE CLAIM?
If we win a no win no fee will contest and will dispute claim then we can charge our fees. We will also claim our expenses at that point too. Please note that Solicitors expenses are sometimes also called “disbursements”. They amount to things we have had to purchase to win your claim. Typically they could include medical copying charges, search fees (Land Registry and Probate Registry), Court fees and experts fees. As we explained above in will contest and will dispute cases where we are working under a no win no fee arrangement, we don’t ask our will dispute and will contest clients to pay us anything unless we win the claim.

So how do we calculate our fees for a will dispute and will contest claim under a no win no fee arrangement?
By fees we mean our costs which are calculated as mentioned by reference to an agreed charging rate. If, for example, we agreed a charging rate of £250 per hour and had carried out 10 hours of work to win the will contest claim, then our fees would be £2,500 plus VAT and disbursements. If the disbursements amounted to £1,000, then our total fees for concluding the will dispute claim under a no win no fee agreement would amount to the following:
Costs – £2,500
VAT (currently 20%) – £500
Disbursements – £1,000
Total = £4,000

6. WHAT CONSTITUTES A “WIN” WHEN YOU ARE WORKING FOR A WILL DISPUTE AND WILL CONTEST CLIENT UNDER A NO WIN NO FEE ARRANGEMENT?
This is something we have to agree with our will dispute and will contest client at the start of the claim process. However on a practical level a “win” must mean that our client becomes able to pay us. If a house must be sold, we will wait until that is done (see above). Similarly we are prepared to wait to be paid if we have to take steps to enforce the settlement agreement.

7. ISN’T IT THE CASE THAT SOME SOLICITORS AGREE TO TAKE A PERCENTAGE OF THE RECOVERED ESTATE WHEN THEY WORK FOR A WILL DISPUTE AND WILL CONTEST CLIENT UNDER A NO WIN NO FEE ARRANGEMENT?
I understand that some solicitors might be prepared to work on this basis when they are acting for a client in a will contest and will dispute claim. At present, we can see no legal basis as such arrangements only appear to be allowed under a “damages based agreement”
and in a will contest claim damages are not usually be claimed, but a rightful share of an estate.
There are other problems. There is no incentive for the solicitor to attempt to claim costs separately and this type of agreement could conceivably lead to overinflated costs, particularly where the will dispute claim concerned a large estate, leading not unnaturally to a much larger than normal settlement. So for instance, when the Solicitor compromises the Will contest claim on the basis the client receives 10% of £10,000,000, the overall settlement figure will be £1,000,000. If the no win no fee arrangement meant that the Solicitor received 40% of the recovered sum, this would amount to a massive £400,000 which is probably 4 times as much as the Solicitor could expect to reasonably charge even if he or she had taken the will dispute claim all the way to a trial and won (which would involve a considerable amount of work).

8. ISN’T THERE A “SUCCESS FEE” TO PAY ON TOP OF YOUR NORMAL FEE IF YOU WIN THE CLAIM FOR A WILL CONTEST AND WILL DISPUTE CLIENT UNDER A NO WIN NO FEE ARRANGEMENT?
Well firstly, what is a “success fee”? Quite simply it is a percentage uplift to normal Solicitors costs, typically up to 100%. So taking our example above, if a success fee of 100% was applied to the £2,500 solicitors costs, the total would increase to £5,000 plus VAT.
Under most no win no fee arrangements, a solicitor can charge a success fee if the claim is won.
We don’t charge a success fee for our will dispute and will contest clients.

IN OUR NEXT BLOG WE TRY AND IDENTIFY THE TYPE OF WILL CLAIM, WILL CONTEST CLAIM AND WILL DISPUTE CLAIM, WHICH WE ARE MOST LIKELY TO WIN AND THEREFORE AGREE TO WORK ON UNDER A NO WIN NO FEE ARRANGEMENT.
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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rolling dice and weighing up the risks of contesting a will

HOW DO I CONTEST A WILL? COMMON MISTAKES

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1. IS IT TRUE THAT I HAVE ONLY SIX MONTHS FOLLOWING THE DEATH TO CONTEST A WILL?
There is no time limit if you are claiming that a Will is not legally valid, because, for instance:
• The person making it didn’t sign it (their signature was forged)
• The person making it didn’t sign it in front of two witnesses who also signed (a legal requirement under section 9 of the Wills Act 1837 – http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9)
• The person making it was forced or pressured into leaving money property and/or assets to someone
• The person making it was misled into leaving money property and/or assets to someone
• The person making it was so ill at the time the Will was made that he or she couldn’t possibly have understood what they were doing at the time
In none of these instances is there an applicable six month time limit. The claim can be brought at any time. HOWEVER (!!) a claim attempted long after the estate has been administered is likely to be pointless (THE MONEY HAS GONE!) and moreover, the evidence needed to prove the case is likely to have been dissipated by the passage of time (documents lost or destroyed and the recollections of important witnesses are likely to have faded or disappeared completely).

2. BUT I HAVE DEFINITELY HEARD ABOUT A SIX MONTH TIME LIMIT IN RELATION TO WILL DISPUTES/WILL CONTEST CLAIMS?
Yes, there is a six month time limit, but is only relates to claims for financial provision against a near relatives estate under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63) and claims to rectify a Will where it doesn’t carry out the instructions of the person making it in relation to his/her estate because of a clerical error or failure to follow instructions (usually by the Solicitors engaged to draft it)(see https://www.legislation.gov.uk/ukpga/1982/53/section/20). In each of these types of claim, it must be brought within six months from the date of the Grant of Probate.
SO WHAT IS THE DIFFERENCE?
The difference between these claims and one against the legal validity of the Will, is that the claims for financial provision/to rectify the Will, aren’t directly challenging the legal validity
of the Will in its’ entirety. The easiest way to understand this is to consider the position where a claim is made the Will isn’t valid because the person making it couldn’t have
understood what he or she was doing when it was made. Clearly in that circumstance it
can’t be suggested that only a part of the Will isn’t valid. If the claim is correct, the entire Will must be wrong.

3. IF THERE IS A WILL, PROPERTY WILL ALWAYS PASS IN ACCORDANCE WITH ITS TERMS?
Unfortunately, it isn’t always the case that a deceased is able to pass his/her assets in accordance with the terms of their Will. Property which he or she jointly own with another, can pass automatically to the co-owner regardless of the terms of any Will and indeed this is often the reason why a Will is never published (a Will is “published” once a Grant of Probate is issued to give the Will administrator licence to administer the estate in accordance with its terms).
Further, even if a Will actually identifies specific property which is to be left to a particular person, this doesn’t prevent the Will writer from actually selling or transferring that property to another during their lifetime.

4. I AM MY FATHER/MOTHER’S CHILD BUT HE/SHE HASN’T LEFT ME ANYTHING IN THEIR WILL – SURELY I AM ABLE TO DISPUTE THE WILL?
In the English and Welsh jurisdictions, a parent has no legal obligation to leave his or her estate to their child and a child has no legal entitlement to family property and money.

5. IT’S NOT FAIR!! MY MOTHER/FATHER HAS LEFT MOST OF THEIR ESTATE OR THE ENTIRETY OF THEIR ESTATE TO ONE OF MY BROTHERS/SISTERS – SURELY I CAN DISPUTE THE WILL ON THIS BASIS?!
Unfortunately not! Our answer above refers. A parent isn’t legally obliged to leave any part of their estate to their child. A Will cannot be challenged because it isn’t fair!

6. I HAVE A GREAT CLAIM AGAINST MY PARENT’S WILL BECAUSE HE/SHE MUST HAVE BEEN SUBJECTED TO PRESSURE (CALLED “UNDUE INFLUENCE”)?
This is the most difficult type of case to prove because what is being alleged is very similar to claiming that a criminal act has occurred. Whilst it ought not to demand a higher burden of proof in the civil courts, it does, because it is such a serious allegation. As a result, it is usually the weakest type of case, not least because the primary witness (the deceased) has usually died without providing any evidence. Further if such an act has occurred it will usually take place in private, behind closed doors, which means there is most unlikely to be any independent evidence (independent evidence is the strongest type) of what happened. What we usually find is that the complainant simply assumes this must have happened because of the circumstances as they see it (and sometimes, quite simply, because they are not in the Will!).

REGRETTABLY, A CLAIM OF UNDUE INFLUENCE ON ITS OWN, IS UNLIKELY TO BE A WILL CLAIM WE COULD DEAL WITH UNDER A NO WIN NO FEE ARRANGEMENT, BECAUSE WE ARE UNLIKELY TO WIN IT! HOWEVER A CLAIM OF UNDUE INFLUENCE IN COMBINATION WITH OTHER CLAIMS, FOR INSTANCE, THAT THE PERSON MAKING THE WILL WASN’T MENTALLY CAPABLE, MIGHT BE A SUITABLE CLAIM WHICH CAN BE TAKEN ON UNDER A NO WIN NO FEE ARRANGEMENT.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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CONTESTING A WILL – THE LIMITS OF THE WILL DISPUTE PROCESS

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In the Sunday Times on 21 October 2018 a family Will dispute involving a £28m fortune was reported on in detail (https://www.thetimes.co.uk/article/family-torn-apart-by-28m-fortune-fp5fnmsbn), and was cited as “extremely bitter, long-running and costly”. The article appears to have arisen as a result of a published appeal relating to costs associated with the dispute (Griffin v Higgs and others 2018 EWHC 2498 (ch) – see https://www.casemine.com/judgement/uk/5bbc78c02c94e077fac1106b).

What was this will dispute case about?

In brief, this claim was brought by the daughter of the deceased who appears to have believed that her vulnerable late mother had been financially abused over a period before her death, causing her £28m fortune to be substantially dissipated during the period in question, so that by the time her mother died the estate had dwindled to £2.2m.
As with many of these cases, the deceased vulnerability was enhanced and/or produced by her dementia. It appears to have been alleged that inter alia, this lead to her being manipulated by the brother to his financial advantage.The daughter was one of a number of discretionary beneficiaries to a trust created by her mother’s Will which seems to have been executed in 2011. She died in 2014.

What was done to contest the Will?
The Will doesn’t appear to have been contested. In this scenario the size of the estate (the pot) is the issue (not the legal validity or otherwise of the Will), with the daughter maintaining the estate should have been much bigger, comprising the £28m mentioned. The problem she faced of course is that these enquiries belonged to the Will executors of her late mother’s Will. They seem to have been unwilling to carry them out. There was, according to the daughter, a conflict because they seem to have had dealings with her brother in relation to his business affairs or businesses associated with him.

The daughter’s claim then was to remove the Executors. The application seems to have been brought pursuant to section 50 of the Administration of Justice Act 1985 (https://www.legislation.gov.uk/ukpga/1985/61/section/50). This says: Power of High Court to appoint substitute for, or to remove, personal representative. (1)Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—
(a)appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or (b)if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons.
It was successful; however Griffin v Higgs & Others 2018 EWHC 2498 (ch) lays bear the limits of the process.

Why did the process of contesting the Will in this instance appear to reveal limits on its viability?
Whilst I am sure the daughter was delighted with the outcome and in particular because the court ordered her costs to be paid, it was not entirely what she wanted as her choice of replacement Executor was rejected by the Court who selected one of three local (and cheaper Solicitors), all of whom had been suggested by her brother!
Moreover, the decision by the court laid bare the limits of her claim. She could not control the investigation which would be dealt with independently. Moreover the court rejected the bulk of her suggested enquiries (albeit whilst not limiting the scope of the enquiries the Executor could undertake); which was likely to temper the Executors investigations. Those in any event were limited by economics – cost vs benefit. The transaction most likely to be found to be suspect, appeared to relate to a relatively modest (in terms of the overall claim about the estate size) asset, which was worth in the region of £200,000.

So what do we learn from this in relation to Will disputes?
• There is a limit to the viability of some claims and an open-eyed and realistic approach must be adopted notwithstanding the “obvious” grounds suggesting a real issue
• The age of transactions and a lack of evidence to prove they were defective are obvious examples of this
• The size of the estate is often not a determinative of the actual amount that is realistically in issue
• Beware making multiple claims; concentrate on those which bring the maximum benefit for the least cost
• PAYING YOUR SOLICITOR UNDER A NO WIN NO FEE ARRANGEMENT WHICH WE CAN OFFER ENSURES HIS OR HER FOCUS IS CONCENTRATED TO PROCURE THE MAXIMUM AT THE EARLIEST OPPORTUNITY.
If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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HAS IT BECOME LESS RISKY TO CONTEST A WILL?

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What is at risk if you contest a Will?

What I am describing is a situation where the legal validity of a Will is challenged; the typical grounds being that the testator was subject to undue influence and/or because he or she didn’t or couldn’t have understood what was going on when the Will was made (typically because of the effects of an illness such as dementia).
If the legal validity of a Will is challenged in this way and there is no resolution or settlement before a trial (which frankly is unusual – falling into those cases comprising less than 1% of all those where such claims are being made) and the claim is lost at trial, then the real risk is that those who challenged the Will are likely to be found liable to pay the winners costs. This is because in our civil court system, the winner is paid his or her costs by the loser.

In claims of this nature, such costs can exceed £50,000!!

Whilst under a no win no fee arrangement (and sometimes, albeit rarely via other insurances/litigation funding agreements) it is possible to secure insurance protection against the risk of losing so that the insurer pays the winners costs, it might not pay all of the claimed costs and in any event, the premiums can be huge (albeit they are waived if the claim is lost). Nevertheless, ironically the size of the premiums (which can exceed £20,000) can be an obstacle to settlement, if this insurance is taken out too early.

Is it always the case that the loser pays in Will dispute claims?
No. Unusually the Court has an inquisitorial role in determining the legal validity of a Will. This means that it might consider a claim to have been correctly brought before it where the facts so determined. Further, it might also make a finding from those facts that the actions of the testator himself or the residuary beneficiaries created a muddle which led to the litigation.
In Spiers v English 1907, these were the findings of Sir Gorrell Barness P (https://swarb.co.uk/spiers-v-english-1907/https://swarb.co.uk/spiers-v-english-1907/). From these principles it was determined that:
1. Where opponents of the Will have been led reasonably to the belief there was good ground for contesting its validity, then if they lose at trial, they will not be ordered to pay the winners costs (but they will have to pay their own and the “winner” will be ordered to pay his or her own costs as well);
2. Where a muddle over the legal validity of the Will was created by the Testator (the person whose Will it is) himself or by the actions of the residuary beneficiaries, then
notwithstanding an unsuccessful claim, the costs of bringing it would be paid by the estate.
In the recent case of James v James (2018) EWHC 242 (ch) (https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2018/242.html&query=(raymond)+AND+(james)+AND+(v)+AND+(karen)+AND+(james)) the court, notwithstanding the claim was lost, found that the claim against the legal validity of the Will had been correctly brought and made no order as to costs. No doubt this was a blow for the Defendants.

What is the significance of the decision in James for Will contest cases
This is apparently old law. Spiers (cited above) was determined in 1907. However, what was different about James was that the approach by the court to this delicate issue, seems to have been swayed by the failure of the Solicitors involved in the commissioning of the Will to have the testator medically assessed. Again, it is old law (see Kenward v Adams 29 November 1975)( https://swarb.co.uk/kenward-v-adams-chd-29-nov-1975/) that a Solicitor preparing a Will for an aged or infirm testator, should have the Will witnessed or approved by a medical practitioner who has satisfied himself or herself of the testator’s capacity and understanding. This wasn’t done in James but the testator was clearly suffering from moderate dementia as a consequence of Alzheimer’s disease (both experts confirmed at trial that moderate dementia did not mean that the symptoms were not very serious).

Whilst this doesn’t mean that more cases will succeed where the “golden rule” laid down in Kenward v Adams (re medical testing in advance of the completion of a Will) isn’t followed, it could conceivably encourage the riskier cases to be advanced with greater force and encourage settlements in those cases on the grounds of “economics” (because if you know your costs of defending a claim may well prove irrecoverable, there is likely to be a saving if a modest offer is made and accepted very early on in the dispute).
If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat or visit us at www.willclaim.com.

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MY STEPFATHER DISINHERITED ME – WHAT CAN BE DONE ABOUT IT?

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A lesson from the past? What can happen to your inheritance when your mother or father remarries?

In a heart wrenching article, Jane Cassell recounts how her mother remarried when she was 9 years old and then a year later on holiday in north Africa, died from a heart attack (https://www.telegraph.co.uk/women/life/know-bitter-experience-parents-need-make-new-will-remarry). She hadn’t made a Will. It seems there may have been a previous Will. However, as Jane Cassell writes, “it’s a little known legal fact that marriage cancels existing Wills, unless special wording is included”.

Section 18 of the Wills Act 1837 confirms that a Will is revoked by marriage except in certain circumstances (http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/18). For Jane the situation was a double tragedy. She lost her mum and was then disinherited because on intestacy the husband was entitled to the whole of her mother’s (probably) modest estate (Note: a larger estate is likely to have yielded an entitlement to 50% of the balance after deduction of a lump sum for the husband and to the remaining 50% once her new husband had passed away).
It appears that there were subsequent legal proceedings to attempt to recover something for her but they were not successful as Jane writes “…the legal battle went on for years until a judge ruled that everything went to my stepfather”.

What can be done to claim your inheritance after your mother or father remarry now?

Whilst I can’t analyse what went wrong with Jane’s legal proceedings, I find myself a little surprised that she wasn’t entitled to anything. In 1975 the then government enacted the Inheritance (Provision for Family and Dependants) Act 1975 (a statute which replaced and updated similar earlier statutes – https://www.legislation.gov.uk/ukpga/1975/63.).
It was designed to protect infant children from exactly this issue. Whilst more difficult when adult children are involved (but not impossible), I cannot conceive that in this type of scenario now (rather, to be fair, than when Jane was a child), she wouldn’t receive a significant award.

It is quite clear from the Act that it had in mind the protection of (infant) children (although as mentioned, adult children who are at least as vulnerable as an infant child can expect to be protected by it too). For instance under section 3(3) (https://www.legislation.gov.uk/ukpga/1975/63/section/3) the court must have regard to the manner in which the applicant (the child) is being educated or trained. What might have adversely affected Jane’s case is 3(3)(c), by which the court is expected to take into account the liability of any other person to maintain the applicant (child). I gather her father “had a good job” at the time. Nevertheless, her mother had only been married for a year. I would expect the full sympathy of the court to fall squarely onto Jane’s side. At the very least the prospect of huge legal costs which are unlikely to be recovered from an infant child would have brought most logically thinking people to the table to seek to compromise her claim.

An example of children disputing their father’s Will – Ubbi and Ubbi v Ubbi (2018) EWHC 1396 (Ch) (https://swarb.co.uk/ubbi-and-anotheri-minors-v-ubbi-chd-27-jul-2018/)
I have referred to this decision before. It was a claim by the infant children of Malkiat Singh Ubbi who disinherited his children. He left an estate valued at £4.5M for probate purposes. His children were awarded £386,290.60. Granted it was easier in one sense for the Ubbi’s to recover something given the size of the estate, but conversely, as mentioned above, a more modest estate such as Jane’s mother’s should equally have brought the step father to the (negotiating) table much earlier, as even if successful he would not have recovered his costs from the infant children. To be clear to those of you not understanding the significance of this, I can put it like this. If, for the sake of argument it will cost you £50,000 of your own legal costs to pursue a case to trial along with the risk of losing at that trial (and you won’t get your costs back even if you win and your opponent is ordered to pay your costs, because your opponent who is an infant child has no money), it makes commercial sense to pay say £40,000 to the child to resolve the case. This is simple maths. However, I regret to say that Solicitors may have dealt with matters is a less transparent way 30+ years ago, so far as costs and risk and an analysis of the value of a trial verses settlement were concerned.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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testamentary capacity is one way to challenge a will - make sure you consider these 5 points

REMOVING AN EXECUTOR IN A WILL CONTEST CLAIM (before a Grant of Probate)

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REMOVING AN EXECUTOR IN A WILL CONTEST CLAIM (before a Grant of Probate)

Here is the scenario. There is no Will and one of the potential beneficiaries who is also a potential Executor owns a property jointly with the deceased and by that joint ownership is entitled to 50% of the proceeds of the property with the remaining 50% falling into the estate to be divided amongst a number of beneficiaries. Alternatively there is a Will and one of the Executors who again is a potential beneficiary owns a property jointly with the deceased. This person is highly manipulative and is clearly trying to avoid the administration of the estate, perhaps because he is alleging that he should get the property outright since he is living in it; alternatively renting it and pocketing the entirety of the income; or possibly because he says he has spent significant amounts of his own cash refurbishing it and thereby owns or is entitled to a greater share. Whatever the scenario one can see that straight away his interests are conflicting with his role as Executor (which requires neutrality so far as the administration of the estate is concerned) and moreover, he may not be inclined to administer the estate at all (by selling the property and dividing up its proceeds amongst the beneficiaries).

What can be done to administer the estate in this type of Will conflict?
Clearly the Executor who is also the joint owner of the property forming a part of the estate has to be removed. There are two types of procedure.
Firstly rule 27(6) of the Non Contentious Probate Rules 1987. Secondly section 116 of the Senior Courts Act 1981.

Let’s have a look at each one.
Rule 27(6) of the Non Contentious Probate Rules 1987
Here is the link for this part of the Non Contentious Probate Rules 1987.
http://www.legislation.gov.uk/uksi/1987/2024/article/27/made

This is what it says:

(6) A dispute between persons entitled to a grant in the same degree shall be brought by summons before a registrar.
So, a Summons must be issued in the Probate Registry and the facts of the matter clearly set out in an Affidavit supporting the summons. A District Registrar in the Probate Registry will be asked to decide. In this instance the potential Executor who is also a joint owner of property forming a part of the estate is on ‘both sides’ of this dispute, i.e. acting both as administrator of the intestate estate and as beneficiary in intestacy, where there is an issue about the existence or extent of his asserted beneficial interest. There is case law suggesting he cannot properly perform his functions as Executor in this scenario and therefore that he should be overlooked as Executor. For instance, Budd v Silver (1813) 161 E.R. 1094; 2 Phill. 115 and Re Carr (1867) L.R. 1 P. & D. 291 which are cited in Williams, Sunnucks & Mortimer at 26-26.

However one needs to be alive to the fact that the court’s discretion is broad in this area, and when dealing with the application, the court may determine that an entirely independent, neutral, administrator should be appointed.

Section 116 Senior Courts Act 1981

Here is the link for this.
https://www.legislation.gov.uk/ukpga/1981/54/section/116

This is what it says:

Power of court to pass over prior claims to grant. (1)If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient. (2)Any grant of administration under this section may be limited in any way the court thinks fit.

Under this section, where necessary or expedient, the court may pass over an administrator who is otherwise entitled to a grant where there are special circumstances; and in its discretion, appoint such person as administrator as the court thinks expedient. The bar to establish special circumstances is high.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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TOP TIPS FOR CONTESTING A WILL

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What are the potential pitfalls?

• To contest the legal validity of a Will you need to have an interest in the outcome of your dispute – for instance, if you prove the Will is not valid, you must be a beneficiary under a previous valid Will or if there is no previous Will by the rules of intestacy (under which in general you will only be a beneficiary if you are either married to the deceased or one of his children)

• There has to be an estate – whilst we often hear it said that the Will is being challenged on the ground that it is a matter of principle, given the financial cost associated with such a challenge (e.g whilst you might instruct Solicitors under a no win no fee arrangement there could still be a financial penalty if you lose, on the basis that you cannot obtain ATE insurance – and you won’t get ATE insurance if there is no estate), you cannot proceed with such a claim unless you don’t care about the potential cost and in truth it is unlikely a no win no fee Solicitor would help you either

• There may not be an estate if the deceased’s property was owned jointly with another – without going into unnecessary legalese, there are two types of joint ownership, one of which gives the survivor of two joint owners the entirety of the property outright, notwithstanding the contrary wording of a deceased’s last Will

• You might win a claim against the legal validity of a Will but still receive nothing because there is someone who can bring a claim for financial provision against the estate under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 by which he or she is entitled to the bulk of the property or perhaps a claim that the property of the deceased is otherwise theirs because in the past it was promised to them as a result of which they incurred significant losses perhaps in working for nothing on a farm owned by the deceased or improving his property at their expense (the latter is sometimes called a claim of “Proprietary Estoppel”

What steps should you take to contest a will?

• After deciding that you can actually contest a will (see above), consider the following:

1. You can only start your claim once the person making the Will has passed away.

2. Evidence – the best evidence is the independent evidence of professionals (for instance doctors who treated the person who made the Will); is there likely to be any?

3. Evidence – even better perhaps, the deceased might tell you that he or she didn’t intend to make the Will in the terms that it was, might say what they wanted instead and why he or she did what she did – you have your telephone so record this.

4. Evidence – keep key letters, cards, text and emails and print them.

5. Evidence – if you are contesting a will because you have health issues and financial needs (in other words you are bringing a claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, think about the following:
• There is a time limit of 6 months to bring this claim from the date of the Grant of Probate
• You will have to produce evidence of your health and financial issues
• If you are an adult child, you should try and show that you have a “moral claim”, that is a claim that unfulfilled promises were made to you by the deceased in relation to his or her estate, you provided care over many years to the deceased or some other reason which might (you suspect) assist in establishing a moral claim (again you will need evidence)

6. Evidence – if you are contesting a will because you were promised a share of the deceased’s property in consequence of which you (for instance) worked for nothing (or very little) on his farm and/or contributed to cost of running or maintaining his property, then again, you will need to provide evidence of this.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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

HOW DISINHERITED INFANT CHILDREN CAN INHERIT

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HOW DISINHERITED INFANT CHILDREN CAN INHERIT (and dispute a Will)

What can be done when infant children have been disinherited?
• In England and Wales it is perfectly legal (but immoral) for a father (or mother) to leave infant children nothing by the terms of their Wills

• If so, what can be done?
• The state has intervened in these unusual circumstances (not least to protect unrelated tax payers from this burden) in the form of the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63).
• By this, a disinherited child can pursue a claim for financial provision against the estate in the civil courts which are bound to have considerable sympathy with it. However, such a claim must be brought within 6 months of the date of the Grant of Probate, so steps should be taken to either conduct regular searches to ascertain the date or apply for a Standing Search with the Probate Registry (see https://www.gov.uk/search-will-probate).
An example – Ubbi and Ubbi v Ubbi (2018) EWHC 1396 (Ch) (https://swarb.co.uk/ubbi-and-anotheri-minors-v-ubbi-chd-27-jul-2018/)

This was a claim by the infant children of Malkiat Singh Ubbi who disinherited his children. He left an estate valued at £4.5M for probate purposes. His children were awarded £386,290.60.
• Plainly it is always going to be easier for infant children (than adult children for example) to achieve an award under the 1975 Inheritance

Act. They are more likely to be favoured applicants because of their vulnerability. However, in Ubbi above, it was this vulnerability which the court tested, finding many aspects of it wanting since the claim originally put to the Court was almost £850,000.

For example:

1. Housing costs – these were put at £335,680.97 but were considerably reduced
2. Private school fees – the claim for these was dismissed

• There were it seems inconsistencies in the evidence put forward on the children’s behalf which lead to a dramatic reduction in the level of their claims which the court would accept. This was a straight-forward forensic exercise on the part of the court the moral of the tale being that claims must be realistic and honest.
What alternative claims can be made?
• A claim can be made in the alternative against the legal validity of the Will. Unlike a claim for financial provision under the ’75 Inheritance Act, there is no time limit for bringing these claims but there is a de facto time limit since very late claims are weakened because the quality of the evidence needed to prove them is reduced and there might not be any point in bringing them if the estate has been distributed and dissipated.
• To dispute a Will in this way, the infant children must have an interest in the outcome of their claim – in other words, they must be beneficiaries under a previous valid Will, or if there is no previous Will, by the rules of intestacy. In general of course, they will be entitled to a share of the estate under the rules of intestacy (https://www.gov.uk/inherits-someone-dies-without-will).
• However, a dispute over the validity of the Will, is much more difficult to prove than a claim for financial provision under the ’75 Inheritance Act. There are limited grounds: it wasn’t properly executed (signed in front of two witnesses who also sign it); the deceased lacked sufficient mental capacity and understanding; there was undue influence. Lack of so-called “testamentary capacity” is very difficult to prove. See for example https://www.lawgazette.co.uk/legal-updates/wills-and-testamentary-capacity/5050883.article. One significant problem, which is not generally understood, is that a person who makes a Will (called a “testator”) can have sufficient capacity even if he or she has dementia. It all turns on the degree to which that condition has adversely affected mental capacity. Unfortunately, you don’t need much capacity as the legal test confirms:
1. An understanding of what the Will does;
2. A capacity to understand (rather than an actual understanding) of the extent and nature of the estate;
3. Identification of those who should perhaps inherit (with no mental condition that adversely affects it).

Further in relation to undue influence, this is even more difficult, because the person influenced is dead and no one else involved in the formation of the Will who benefitted from it, is likely to confess.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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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

HOW TO CONTEST A WILL WITHOUT CHALLENGING ITS LEGAL VALIDITY (part 2)

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HOW TO CONTEST A WILL WITHOUT CHALLENGING ITS LEGAL VALIDITY (part 2)

This is the second part of our two part blog about contesting the legal validity of a Will, without actually challenging its legal validity. In our first part we explained how the deceased, who was married to our client (her husband), left him nothing under the terms of her Will, because she mistakenly believed that he would automatically inherit their extremely valuable (worth approximately £1.8M) matrimonial home, as they owned it jointly. In fact, of the two types of joint ownership, they were joint owners on a “tenancy in common” basis which meant her share fell into her estate to be dealt with by her Will, within which she had made no provision for her surviving husband.

Why not challenge her Will?

There were no obvious grounds:

  • She had instructed Solicitors to draft it and arrange its execution all of which had been correctly dealt with
  • Although she was seriously ill with cancer and taking very strong pain killing medication (morphine based), which technically could have caused confusion and memory problems, the doctors who were treating her made no record that these were issues when her Will was prepared by her Solicitors and executed (specific evidence of a loss of capacity would be required to have a chance to dispute the Will)
  • Finally, given in England and Wales there is so-called freedom of testamentary disposition, she was not obliged to leave her estate to her husband, children and other blood relatives.

So what could we do to challenge her Will?

There were three primary avenues of attack:

  1. Firstly a claim in professional negligence against the Solicitors who drafted and arranged the execution of the Will. Although, they had no direct contractual relationship with our client, a number of leading cases have held they have a duty of care to a disappointed beneficiary (see https://swarb.co.uk/white-and-another-v-jones-and-another-hl-16-feb-1995/). Here the primary failure on their part was to carry out a Land Registry search (https://www.gov.uk/search-property-information-land-registry), which would have taken only minutes and cost £3(! ) to check how the property was held and advise the deceased accordingly, following which we would have expected her to make sufficient provision for our client, her husband, under her Will.
  2. Secondly, a claim to rectify the Will under section 20(1) Administration Act 1982 (https://www.legislation.gov.uk/ukpga/1982/53/section/20). By this Act, a Will can be rectified, if it fails to carry out the intentions of the deceased, because of a clerical error and/or a failure to understand his or her instructions. In https://swarb.co.uk/bell-v-georgiou-and-another-chd-28-may-2002/ this was found to include an error on the part of the deceased herself. Again, without getting too technical, a “clerical error” has been found to have a wide meaning, perhaps beyond the obvious, but in any event, there was plainly a failure to understand the deceased’s instructions in our case, since they were founded on a basic misunderstanding so far as her joint ownership of the matrimonial home was concerned.
  3. Finally, and even though our client was the husband of the deceased, he still had rights and entitlements in relation to their matrimonial property, given the fact of their marriage. She was obliged to make sufficient provision for him and in fact he had relied largely on her income throughout the course of their marriage. Our third limb then was a claim for him under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975.

It is possible to bring all three of these claims at the same time and in fact expected, insofar as the claim in professional negligence against the Solicitors was concerned, as our client was obliged to “mitigate” (limit) his losses. Notwithstanding he was successful in doing this, given he incurred unnecessary expenditure in pursuing these claims (his costs of bringing them), the Solicitors were required to meet this wasted expenditure which we couldn’t completely recover by means of the other claims.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat or visit us at www.willclaim.com.

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A fountain pen to sign and execute a will

HOW TO CONTEST A WILL WITHOUT CHALLENGING ITS LEGAL VALIDITY (part 1 of 2)

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HOW TO CONTEST A WILL WITHOUT CHALLENGING ITS LEGAL VALIDITY (part 1 of 2)

This is another example of a recent Will contest claim involving the widower of the deceased. In this case, our client who had been married to the deceased for over 20 years and whose older wife (he was 12 years her junior) sadly died prematurely due to cancer. Not only did this happen but when her Will came to light, it revealed she had left him nothing in the expectation that because they owned the matrimonial home jointly, he would inherit it outright as the survivor (of the two joint owners). As usual in these Will contest claims, the matrimonial home was the most valuable asset. However, she also had a number of valuable investments amounting to approximately one third of her estate (but which was worth almost £1M). These she left to be dealt with by her Will, which was made last minute, after an apparent fall-out with our client. Under its terms, our client received nothing. Instead, her estate was left to her friends and work colleagues.

Why does property owned by the deceased not form part of her estate?

This is a problem with jointly owned property, typically a house. In English and Welsh law there are two types of joint ownership.

Tenants in common

Without being too technical, one is called a “tenancy in common” and is designed to deal with the position where each joint owner has a defined share. This is often 50:50. This type of joint ownership can usually be identified by a search with the Land Registry (https://www.gov.uk/search-property-information-land-registry). The Land Registry title for each property has a “Proprietorship Register” identifying the owners. If the property is owned by the joint owners as “tenants in common” then it will contain a “Restriction” against one of the owners selling it without the consent of the other; alternatively with the consent only of the Court.

Where a joint property is owned as “tenants in common” by the deceased, his or her defined share, will fall into his or her estate, to be dealt with under the terms of his or her Will.

Joint tenants

In our case, the deceased wrongly believed that the form of joint ownership in relation to the matrimonial home, was under the other type of joint ownership, which is as so-called “joint tenants” (nothing to do with renting the property!). This type of joint ownership assumes that the owners haven’t formally decided on their specific shares in the property. Perhaps the best way of understanding it is to assume that each owner has theoretically combined their shares so that they have merged into one – possibly also reflecting the nature of their relationship or marriage in the old-fashioned sense.

When one of the joint owners of the matrimonial home owned as “joint tenants” dies, his or her share automatically passes to the survivor, notwithstanding the contrary terms of a Will by the deceased. In other words it does not form a part of the deceased’s estate.

This is what happened in our case. The deceased mistakenly assumed that her share of the matrimonial home would pass to her husband automatically, because she believed she jointly owned it with her husband as “joint tenants”. In fact she owned it with him as “tenants in common” and their respective defined shares amounted to 50% each, worth individually approximately £900,000 (as the property had a value in the region of £1.8M).

In consequence, she ended up leaving him nothing at all!

In part 2, we explain how this was contested without actually disputing her Will

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat or visit us at www.willclaim.com.

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A handwritten will can cause problems if it's not clear what the intention of the will is.

WHAT ACTUALLY HAPPENS WHEN WE TAKE ON YOUR WILL DISPUTE CLAIM?

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This is an example of a typical recent Will contest claim involving a so-called adult child pursuing a claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63).

To explain, a claim under the 1975 Inheritance Act, is not a claim that there is something wrong with the Will, rather that it unreasonably fails to make financial provision. A claim of this type is limited to a select group of potential claimants to include the spouse and children of the deceased. It is an Act which seeks to prevent potential unfairness to close members of the deceased’s family when he or she exercise their right to leave their estate to whomsoever they please.

It was probably envisaged that the 1975 Inheritance Act would apply to those cases where the deceased, who had a young family, left his estate to his French mistress. However, the Act on its face goes beyond that and includes adult children, whom, a succession of cases has revealed, are perfectly at liberty to claim as well and successfully so (see for example https://swarb.co.uk/nahajec-v-fowle-misc-18-jul-2017/ which we previously commented upon in https://www.willclaim.com/inheritance-act-post-ilott/).

In our real case the adult child was adopted by the deceased. He had been the subject of an abusive upbringing (sexual). In consequence, he left home early (at age 14) and before he had a chance to complete his education. His career suffered in consequence. He was only ever engaged in manual work and his employment record was intermittent because of mental health issues. A lifetime of mental health and financial problems ensued and when he came to make his claim he was over 60 years old.

Whilst there had been an estrangement between our client and the deceased for the whole of his adult life, this was completely understandable and reasonable.

So what did we do when we took on this claim and how was it resolved?

The nuts and bolts of running a claim like this one are quite straight-forward. It has a time limit of 6 months from the date of the Grant of Probate (the “Grant of Probate” is the licence to administer an estate which must be obtained by the Will Executor). Given so, and because we are obliged to provide our client’s key evidence to the Court as soon as a court claim is made, we immediately take steps to obtain a detailed statement. The statement has to be as accurate and as detailed as possible and will include the background to the relationship between the deceased and our client, our client’s health issues and his financial circumstances and needs.

Once the statement has been obtained, we will then go about putting together a detailed letter of claim. This is a very important document. It will provide the legal basis for the claim (ie  “the law” in relation to the Will dispute or claim against the estate). The statement that we mention above, provides the factual basis for the claim and is exhibited to the detailed letter of claim.

There are certain matters which the detailed letter of claim must refer to in the Will dispute case. For instance, what is being claimed and the actual legal remedy sought. Also, where the claim is disputed, it is essential to ask the Defendants for their critical papers. This is called a request for “disclosure”.

Of more importance to this case, however, was our offer to engage in “alternative dispute resolution”. In other words, to try and resolve the claim without going to Court. In this instance we offered to mediate and a mediation did in fact take place.

What is a mediation – in simple terms it is a negotiation, usually in a formal setting where each side has a private room and need not meet the other, but where a professional facilitator called a “mediator” helps to bring the parties together (in terms of their differences rather than physically!) to resolve the dispute.

During the mediation settlement terms were offered, adjusted and eventually accepted. Our client received a substantial share of the deceased’s estate.

If you consider that any of these facts and matters are likely to apply to you, then please do not hesitate to contact us for a confidential no strings chat.

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rolling dice and weighing up the risks of contesting a will

WHAT BEHAVIOURS OR SCENARIOS CAN LEAD TO A WILL DISPUTE

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The tragic case of Sotherby’s legend, Nicholas Rayner, was reported in the Daily Mail on Tuesday 31 July 2018. Once a high-flying playboy who had excelled at the Cresta Run, raced his classic Aston Martin across the frozen lake at St Moritz and who had flown his Auster plane in all weathers, once even damaging its wing when he flew too low hitting telephone cables, by 2010 he was a frail unrecognisable stroke victim. His story which was discovered at this point, is, we regret, a typical Will contest scenario. His carer sued him in 2010 on the basis that he had reneged on a promise to give her his Belgravia House. In the subsequent court proceedings it was discovered that his carer had actually defrauded him out of almost £780,000 by persuading him to pay tens of thousands of pounds in fictitious school fees for a daughter that she did not have. She also ran up a colossal £160,000 bill for personal telephone calls. She was ordered to repay 1.2 m, a sum which included interest. However she seems to have spent or disposed of the money as Rayner didn’t get a penny.

Tragically, this is a typical scenario in Will contest claims – a vulnerable adult with money and a ruthless individual who takes full advantage. The patterns of behaviour in this scenario tend to be the same, and include some of the following:

  1. A sudden rekindling of relations after many years of animosity or an unexpected close friendship with a stranger or neighbour after which nearer or close relatives (often including the children of the victim) have difficulty in establishing contact with him or her;
  2. There then follows a period when during the times it is possible to actually communicate with the victim, he or she begin to suggest unfounded actions against innocent relatives; typically an attempt to exhort money or the failure to return money loaned that was actually a gift;
  3. Often the individual who is manoeuvring to take over the individuals life moves in with him or her and will take over all communications, to include answering the telephone;
  4. As with Mr Rayner, there is always a mental health issue arising from a stroke, Alzheimer’s or Dementia, weakening the victims ability to resist what amount to attacks against their estate and their ability to make their own decisions, in particular any testamentary decisions governed by their Will;
  5. If a new Will is commissioned during this period it is often “home-made” or with a Solicitor who has had no previous dealings with the victim;
  6. The perpetrator is seen to take more holidays, typically abroad – more often than not he or she is seen driving a new car;
  7. When the victim of Will fraud eventually dies, the family are not informed or if they are they are told the victim didn’t want them to attend his or her funeral and again spurious and/or slanderous reasons are given for this;
  8. When attempts by near relatives are made following the death of the Will fraud victim to obtain a copy of the Will from the perpetrators Solicitors, they are told it is confidential and sight of it is refused, notwithstanding that following the Grant of Probate, it becomes a public document anyway;
  9. When the Will is eventually seen, it is found that the victim’s signature is witnessed by two individuals known only to the perpetrator.

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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piles of money to illustrate what is reasonable financial provision after teh case of Wooldridge v Wooldridge

JOINT BANK ACCOUNTS IN WILL CONTEST CASES

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We have all seen this – Auntie Hilda, a frail, vulnerable and yet compos mentis 86 year old spinster has trouble getting to the bank in her local town, where, on a weekly basis, she withdraws £100 cash for her shopping, newspaper and gin. The same bank account holds all of her worldly savings which includes a large lump sum in life insurance which she received after her sister’s death. The balance in the account is £250,000.

Along comes her niece, Grace, who is actually only a goddaughter, but who is 50 years old and lives in the same town. She is 50 years old and lives in local social housing. She offers to help Hilda, and agrees to be a joint account holder with her.

This arrangement works well. As Auntie Hilda gets older, she starts to struggle to walk, and eventually becomes housebound. However, Grace continues to withdraw her weekly £100.

When Hilda dies, near relatives are disappointed to find that the money in the joint bank account doesn’t form part of Hilda’s estate. They receive only the contents of her home (which is rented) which are valued at £150!

The above scenario isn’t real, but is often repeated up and down the country. What is the position in law?

In Re Northall (deceased) (2010) EWHC 1448 (CH), a similar scenario existed. Mrs Northall had bought her Council House with financial help from her children. When the property was sold in December 2006, she received a cheque for £54,836, but, unfortunately, she didn’t have a bank account. One of her children opened a bank account for her, but in joint names with himself. About 50% of the £54,836 had been paid out by time Mrs Northall passed away. After her death, he actioned the whole of the balance to be paid into a joint account with his wife.

When the matter came to court, the son who had received the money claimed that it was his mother’s intention that he should have the residue from her account (which he had held with her).

The Judge upheld the following legal principles, there was no evidence that the money had been intended as a gift for the son. Basically, when one person puts money into the joint names of another, there is a presumption of something called a “Resulting Trust” in favour of the provider. In other words, the money continues to belong to the provider. However, if it can be proved by the recipient (here the son) that it was the intention of the provider to give it to him, then he can keep it. The burden of proving it was on the son, but he couldn’t. To be clear, then, the Court was not prepared to rely on his own evidence on this point.

Taking a step back, one can see that as a result of this decision, it would be difficult for the recipient of a “windfall” from the joint bank account in these circumstances to prove the intention of the deceased joint account holder.

However, a more recent decision by the Supreme Court in the guise of the “Privy Council” has considerably watered this down – see Whitlock and another v Moree (2017)(UKPC 44). Here, the court looked more closely at the bank’s own terms and conditions governing the operation of the bank account. It found that by these terms and conditions, each joint account holder (and, significantly, the provider of the money into the joint account) had agreed that it was the survivor on the death of one of the joint account holders who was entitled to the remaining balance in the joint account. This was regardless of who had put it there. Further, there was no need for the Court to look beyond these terms and conditions.

It would appear, then, that for the time being at least, the Courts have successfully closed the fruitful line of attack for disappointed beneficiaries in Will dispute cases opened up by the decision in Re Northall.

If you have any concerns or questions about this, or any of these issues apply to you, then please do not hesitate to contact us at Willclaim.com for a confidential no-strings chat.

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