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CONTESTING A WILL – CASE STUDY 2

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WILL CONTEST CLAIM – RELYING ON THE CONCEPT OF “MUTUAL WILLS” AND A CLAIM FOR FINANCIAL PROVISION UNDER SECTION 2 OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

1. In this instance we were approached by a potential client who was the deceased’s only child and whose elderly mother had prepared a succession of Wills in her later years completely disinheriting her. It would appear that in this instance, her “fault” was living abroad when her mother was living in the UK. She left the entirety of her estate to friends and neighbours.
2. Our client was moving towards the end of her working life. She had some (albeit limited) capital tied up in her house (co-owned by her ex-husband) but intermittent and unreliable income and chronic ill-health.
3. Her primary claim appeared to be one under the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63). However, this would have meant a somewhat limited will claim could be made as in general, the courts seem determined to limit the amount which could be recovered by a so-called adult child in cases of this nature. For example, refer to Ilott v Mitson 2017 UKSC (https://www.bailii.org/uk/cases/UKSC/2017/17.html) and also Nahajec v Fowle 2017 (Leeds County Court) (https://www.bailii.org/ew/cases/Misc/2017/11.html). In Nahajec the adult Claimant (child) only received £30,000 from her father’s estate which amounted to £265,710 and which some legal commentators took to mean that there might be an “11% rule” for adult child Claimant’s thereby severely limiting their claims. There is no such rule in Will contest claims although clearly courts find it problematic awarding adult child Claimant’s a significant share of the estate.
4. We knew then that this client’s claim would be limited unless something else came to light which we could use to lever a much larger figure from the estate. Nevertheless, we agreed to work on this claim against the Will under a no win no fee arrangement.
5. Having considered the claim in detail with our client we obtained from her information about her mother (and father’s) previous Wills. She identified their Solicitor and actually took it upon herself to write to him to ask him to provide her with a copy of them. He did and it revealed that early in the 1990s both her mother and father had agreed to make Will, which were so-called “mirror Wills” but which went further and confirmed that each would not be revoked. There was also a Deed of Agreement they had entered into at the same time, which said exactly the same thing. Unfortunately after her father’s death our client’s mother had reneged on that agreement under which in fact our client would have been the sole beneficiary.
6. This agreement amounted to an enforceable “contract” in law and it meant our client could enforce her late father’s wishes and overturn the Will of her mother. It completely altered her position in relation to the will dispute as it turned a fairly weak will contest case into a very strong one. Both claims could and were run at the same time. Unsurprisingly, the Defendants to this claim agreed to a Mediation (which is a
formal negotiation hosted by a trained facilitator called a “Mediator”, see for example – https://en.wikipedia.org/wiki/Mediation

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 A WILL – CASE STUDY

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WILL CONTEST CLAIM – WHAT FOLLOWS IS OUR SYNOPSIS OF A REAL CLAIM

1. In this instance we were approached by a potential client whose existing Solicitors had refused to carry out any further work for him. They had been instructed under a no win no fee agreement. They claimed that he hadn’t told them the truth about his financial circumstances and previous history, matters which he disputed.

2. His claim had been made by the previous Solicitors under the Inheritance (Provision for Family and Dependants) Act 1975 (https://www.legislation.gov.uk/ukpga/1975/63). They had issued court proceedings for him and served them on near relatives who had all responded. In the responses a concession had been made that he should be paid £50,000 from the £600,000 plus estate. His previous Solicitors had wanted him to accept this inclusive of their costs which they claimed amounted to about 50% of the £50,000.

3. We agreed to take the case on under a no win no fee arrangement as well. We took over the case and arranged to meet the Claimant (and his partner) at which we took detailed instructions from him about his claim. It transpired the matters over which he had been in dispute with his previous Solicitors (concerning the accuracy of certain facts) were not really relevant to his claim for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, broadly because the deceased had made a subsequent Will under which the Claimant had received a substantial share of the estate in any event.

4. What was relevant was the Will which followed that under which the Claimant (and his brother) had been completely disinherited, but bequeathed, as mentioned, the sum of £50,000. The specific bequest of £50,000 was one of a number the deceased had made amounting to over £120,000. There was a separate gift of the most valuable part of his estate; namely his property in London.

5. This new Will was “homemade”. The cash gifts within it (including the £50,000 to our client, the Claimant) were a nonsense, since, as we subsequently discovered, the deceased had never more than about £20,000 in savings. That and the fact that this was a “homemade” Will brought into question the deceased’s knowledge and approval of the terms of the Will. It also brought into question his legal Testamentary Capacity at the time the Will was made. For instance, one of the tests of capacity is the testator’s (the deceased here) understanding of the extent of his property (see for example – https://www.thegazette.co.uk/all-notices/content/100844). He must also understand the terms of his Will (the knowledge and approval point mentioned). The fact that he had purported by his new Will to make cash gifts which were impossible for him to have made, strongly suggested the lacked legal testamentary capacity and that he hadn’t known and approved of the contents of his Will.

6. The Defendants to this claim agreed to a Mediation (which is a formal negotiation hosted by a trained facilitator called a “Mediator”, see for example – https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html) where the issue over the legal validity of the deceased’s homemade Will was raised for the first time. The Defendants had no answer to our client’s justifiable doubts over its legal validity. They were forced to concede a one third share of his estate amounting to about £200,000! The claim was successfully compromised 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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rolling dice and weighing up the risks of contesting a will

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

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WILL CONTEST CLAIMS – THE DANGERS OF A TRIAL

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

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

WILL CONTEST CLAIMS – WHY IS A TRIAL DANGEROUS?

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

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

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

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

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

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

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

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

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

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

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

CONTESTING A WILL – HOW PROMISES CAN OVERRIDE WILLS

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

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

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

WILL CONTEST CLAIMS – WHAT IS PROPRIETARY ESTOPPEL?

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

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

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

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

• it would be unconscionable to go back on the assurance

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

WILL CONTEST CLAIMS – HOW EASY IS THIS TO PROVE?

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

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

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

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

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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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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 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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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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legal documents for consideration

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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instruct your will dispute solicitor for success

Your Will Dispute Solicitor – 5 Questions to ask

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Challenging a will can be stressful and it is important to make sure that you understand the process by making the most out of meetings with your solicitor. Five questions to ask your will dispute solicitor when challenging a will are set out below.

  1. What is the best way for me to challenge this will?

You should ask your will dispute solicitor whether challenging the validity of the will is the best option, and if so, what grounds the will should be challenged on. There are different grounds for challenging the validity of a will, and which grounds are relied upon will depend on the nature of your situation. For example, if you suspect the will was made under the control or influence of someone other than the testator, a claim for Undue Influence might be appropriate. If you believe the testator’s will is invalid because the testator was not of sound mind, for example if they were suffering from dementia when the will was made, a claim for Lack of Testamentary Capacity might be the best option.

If the will is validly made but has failed to make suitable arrangements for those people who were dependant on the testator when they were alive, a remedy is available under the Inheritance (Provision for Family and Dependents) Act 1975. Through an Inheritance Act claim, you can apply to the courts for reasonable financial provision out of the estate of the deceased, without challenging the validity of the will.

  1. How will I fund my case?

Will disputes can be expensive, especially when they go to court, because of the costs of hiring lawyers to advise and represent you. If you lose the case, you may be ordered to pay the costs of the successful party, as well as your own legal costs. However, if you win the case, the legal fees can be paid for out of the inheritance you get from the most recent valid will or the intestacy rules.

Some lawyers offer no-win no-fee arrangements, which can make the dispute less expensive because you will only have to pay your own legal fees if your challenge is successful. A further option to reduce costs is to attempt to resolve the dispute through mediation. This will avoid the additional costs of going to court, which can rise further if a court judgement is appealed.

  1. What should I do next?

You will have to make a decision as to whether or not to challenge the will, and your will dispute solicitor might advise you to consider mediation as an option. Depending on what grounds you are using to challenge the will your solicitor might advise you to gather documents such as letters or medical documents relating to the testator as evidence to support your case.

  1. Will I have to go to court?

Going to court is time consuming and often expensive. Mediation is an alternative option to going to court. Your will dispute solicitor can explain the details, but it is possible to resolve a will dispute through mediation – and often advantageous. Unlike other types of civil disputes, in contentious probate attempting mediation is not a requirement but may be a suitable option to avoid having to go through the courts. Mediation involves discussing the issues and negotiating in good faith with the defendant to arrive at a settlement.

  1. What happens if the dispute is successful?

If a will is declared invalid, the testator’s property will be distributed according to the provisions of their most recent valid will. If the will that has been declared invalid was the testator’s only will, then the estate will be divided according to the intestacy rules. It is important to find out what your position would be if the dispute succeeds because otherwise you might go to court to have the will declared invalid only to find that you still do not inherit anything from the testator.

If you have a successful will dispute for reasonable financial provision under the Inheritance Act 1975, the court will decide on the appropriate sum that amounts to reasonable financial provision in your circumstances.

Will Claim Solicitors are experts in will disputes and Inheritance Act claims. We are will dispute solicitors and usually act on a no win no fee basis and will be very happy to carry out a free claim assessment to start answering these questions for you.

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charitable organisations and contentious probate

Contentious Probate and Charitable Organisations

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It is common practice for testators to leave money and other assets to charitable organisations in their will. Will disputes usually arise when family members disagree over the validity of a will or its availability of reasonable financial provision. However, in a situation where the beneficiary of a will is a charity, that organisation can become involved in a will dispute as the claimant or as the defendant.

The recent case of Ilot v The Blue Cross and Others [2017] UKSC 17 (Known as Ilot v Mitson) involved a will that left the testatrix’s entire estate to three charities and not to her daughter; the testator’s daughter challenged the will and the case was appealed to the Supreme Court.

 

The Inheritance (Provision for Family and Dependants) Act 1975

Claimants can apply to the courts for reasonable financial provision if the will of a testator they were dependant on has not made provision for their maintenance. This way of challenging a will does not ask the courts to question the validity of the will itself, but asks to make provision out of the estate for the claimant’s maintenance.

The Facts of Ilot v Mitson

The case involved a woman Ms Ilot, who applied to the courts for reasonable financial provision when her mother did not leave her anything in her will. The entire estate was left to the charities The Blue Cross, The Royal Society for the Protection of Birds and the RSPCA.

Ms Ilot challenged the will under the Inheritance Act 1975, and at the court of first instance the judge granted her £50,000 for reasonable financial provision. Ms Ilot appealed the judgement to the Court of Appeal, where she was awarded an increased sum on £140,000 to account for difficulties the provision created for her benefits. When the case was appealed to the Supreme Court, the Court of Appeal judgement was overturned and the sum reduced back to the original £50,000.

The Judgment

Notably, in her judgment in Ilot v Mitson, Lady Hale observed

the unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance.”

In addition to the issue of charities as defendants in a will dispute, Lady Hale pointed out the difficulties in applying the Inheritance Act to adult children of testators. The case was appealed partly because it was difficult to say whether the Court of Appeal judge had erred in awarding a higher sum to Ms Ilot, because of the lack of guidance on maintenance provisions for adult children of a deceased testator.

In his judgment, Lord Hughes said,

“charities depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes. More fundamentally, these charities were the chosen beneficiaries of the deceased.”

The court focussed on the public benefit of leaving gifts to charitable organisations as well as the fact that the testatrix had chosen those charities to be beneficiaries in her will. This case serves as a striking reminder that the courts are under a duty in will disputes to decide, either whether the will is valid, or in Inheritance Act claims, how much financial provision is reasonable for the claimant. It is not for the courts to decide whether the provisions in a will are unfair, as it is generally the testator’s decision as to how they want their property to be distributed according to their wishes. It did not matter to the court whether it was unfair for Ms Ilot’s mother to refuse her an inheritance, as long as the will was valid and reasonable financial provision had been provided.

Further Possibilities for Charitable organisations

More recently there have been media reports of charitable organisations attempting to make Inheritance Act claims for reasonable financial provision when their regular donors do not include provision for charitable donations in their will. It has been argued that since charities rely heavily on lifetime donations, they may have cause to expect reasonable financial provision from the wills of their regular donors, as they are dependant on their generosity. However, such challenges have yet to be tested in the courts.

If you have been disappointed in a will because the testator has left significant amounts (or indeed the entirety of their estate) to a charity or charitable organisations, Will Claim solicitors may be able to assist. We specialise in handling will disputes and will be able to advise on the strength of your claim and the next steps you should take. To book an appointment, contact us, or complete our free claim assessment request to get the ball rolling.

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letter of wishes and reasonable financial provision

Thompson v Raggett: Letter of Wishes and Reasonable Financial Provision

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The recent case of Thompson v Raggett & Ors [2018] EWHC 688 (Ch), concerned an Inheritance (Provision for Family and Dependants) Act 1975 will dispute, and the use of letters of wishes. An elderly lady applied for reasonable financial provision when her partner and cohabitee of 42 years failed to leave any provision for her in his will when he died, despite the fact that he had explained his reasons in a letter of wishes with the will.

The Facts of Thompson v Raggett

Joan Thompson and Wynford Hodge were partners, who had cohabited for over 40 years. When Mr Hodge passed away, he left a letter of wishes explaining his reasoning for leaving nothing in his estate to Ms Thompson. He explained that he did not wish his estate to end up with Ms Thompson’s children from a previous marriage, whom he felt had taken advantage of him in the past. He believed that Ms Thompson had her own savings and was financially comfortable. Mr Hodge’s estate was worth £1.5 million. In fact, Ms Thompson only had modest savings of £2,500 and was living on state benefit and disability living allowance.

Before his death he had purchased a cottage, with the intention of living there with Ms Thompson. As reasonable financial provision, the claimant sought legal title of the cottage, as well as provision for the upkeep of the property. Ms Thompson’s son and his wife had agreed to live in the cottage and look after her.

Reasonable Financial Provision

As a cohabitee who was financially dependent on the deceased up until his death, Ms Thompson fell under s1(1)(ba) and 1(B) of the Inheritance (Provision for Family and Dependants) Act 1975: an unmarried partner cohabiting for two years up until the death of the testator, or s1(1)(e): any other financial dependant. The relevant definition of reasonable financial provision for this will dispute was therefore “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.” Judge Jarman QC decided that Mr Hodge’s belief that Ms Thompson had sufficient savings was an insufficient motive to justify the lack of financial provision for her in the will.

The court accepted that the reasonable financial provision should include “provision for her accommodation and care needs”. Judge Jarman QC went on to consider all of the circumstances of the case, with particular emphasis on the length of time the partners cohabited, and the fact that Ms Thompson had contributed to taking care of the deceased’s mother, as well as the deceased when he became unwell. Ms Thompson went to live in a home after her partner passed away, and she made it clear to the court that she did not wish to live in the home, but in the cottage, on the same farm where the couple had lived for 42 years.

The judge accepted that it would be unreasonable to provide accommodation off the farm, as Ms Thompson had lived there for so long and it was her desire to live there indefinitely. The judge ordered the transfer of the cottage to the claimant for her to live in with her son and her daughter-in-law. Ms Thompson was also awarded £28,844 for renovations of the cottage, and a further £160,000 for on-going financial provision.

The risk inherent in a letter of wishes

At the end of the judgement, the judge stated,

Whilst the wishes of Mr Hodge that Mrs Thompson’s family should not benefit from any provision for her should be given appropriate weight, those wishes should not hinder the reasonable provision for her maintenance. That is the mistake that he made in his letters of wishes which led to no provision at all being made.”

Simply leaving a letter of wishes that explains one’s reasoning will not justify leaving financial dependants out of a will. If the will does not leave reasonable financial provision for someone who falls within the categories of financial dependants in the Inheritance Act, it is possible to make a successful Inheritance Act claim regardless of the motivations of the testator. In an Inheritance Act will dispute, the judge will take into consideration all of the circumstances of the case, and provision can be awarded even if it is contrary to a letter of wishes.

If you are considering a claim for reasonable financial provision under the Inheritance Act – because you feel you should have been left more than you received under a will, Will Claim Solicitors can help. We are experts in will dispute litigation and can usually act on a ‘no win no fee’ basis. Contact us today or complete our free claim assessment form and we will get in touch.

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In Nutt v Nutt the court looked at fairness in a will dispute

The Fairness of Will Disputes: Nutt v. Nutt [2018] EWHC 851 (CH)

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The recent case of Nutt v Nutt, an elderly lady left her house to one of her children and not the others. The case shows the factors that the courts use to resolve will disputes.

The Facts of Nutt v Nutt

Lily Rose Nutt passed away in 2013; she was a widow. Mrs Nutt had made a will in 2005, and another in 2010. Mrs Nutt had three children: Christopher, Vivienne, and Colin. The 2005 will divided the estate equally between the three siblings. The 2010 will left Mrs Nutt’s house to Colin alone; the house was the largest asset in the estate and was worth approximately £350,000. When a will dispute was raised by the other siblings, the judge, Master Clark, had the task of deciding whether or not the will that was made in 2010 was valid.

Testamentary Capacity

One of the grounds the claimants relied upon to challenge the will in Nutt v Nutt was lack of testamentary capacity. In Banks v Goodfellow (1869-70) LR 5 QB 5494, the test to decide whether an individual has the testamentary capacity to make a will was set out:

  • The testator of the will must know the nature of the document they are preparing- that it is a will
  • The testator must have knowledge of their estate and an idea of their wealth and their assets
  • The testator must have an idea of who their dependants are and who might be expecting to inherit from their will

Mrs Nutt was diagnosed with dementia in 2011. The judge decided that this was enough to cast doubt on her capacity to make a valid will. The claimants had asserted that in 2010 when the will was made, the testator was already suffering from dementia and that she could “barely write her own name”. Her correspondence from that time indicated otherwise. The judge accepted that although she developed dementia in 2011, she did in fact have testamentary capacity when she made her will in the previous year, so the claim failed on the grounds of lack of testamentary capacity.

Knowledge and Approval

The claimants also raised a claim on the grounds of lack of knowledge and approval, in other words, that the will was invalid because the testator did not know or approve of its contents. Colin gave evidence that his mother had insisted on leaving him the house in the 2010 will and called upon third party witnesses to support the view that Mrs Nutt had been adamant that the bequest was her intention. The judge accepted this evidence and rejected the claim of lack of knowledge and approval because the evidence suggested that she not only knew about the new will, but also was intent on making it.

Undue Influence in Nutt v Nutt

In Re Edwards [2007] EWHC 1119 (Ch), the burden of proof in undue influence cases was set out:

It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.”

The claimants alleged that Mrs Nutt’s will had been made under the coercion of Collin and was therefore invalid. They argued that Collin Nutt was dominant and domineering. Their evidence was that Collin had told Mrs Nutt to put on a different pair of shoes and coat so she didn’t get cold, and that he had been “holding court” at both Mrs Nutt and her late husband’s wakes. However, as evidence that Collin had behaved in a dominant way, this did not convince the judge.

The claimants also said that Collin had taken money from his mother for making repairs to her house. The judge rejected this evidence and said that Collin had not been paid for the repairs other than cash for the cost of materials. The judge said there was no evidence to support the claims that Collin controlled Mrs Nutt financially. The judge accepted Collin’s evidence that he was not involved in the 2010 will and therefore there was no undue influence.

Conclusions of the court in Nutt 

Master Clark stated in the judgement,

“it is not my task to decide whether the 2010 will was justified or fair; I am only required to decide if it is valid. For the reasons set out above I find that it is valid, and that the claim therefore fails.”

This case serves as a reminder that in will disputes, the court ultimately has to decide whether a will is valid based on legal principles such as capacity and undue influence: it is not for the judge to decide whether or not the provisions in a will are morally fair on the beneficiaries.

This case illustrates an important aspect of many will disputes. Just because a will is not fair does not mean it is invalid. In some cases, it may be more appropriate to bring a claim for reasonable provision under the Inheritance Act, but this can be a difficult claim to bring for an adult child who is financially independent.

For expert advice on your situation, get in touch with Will Claim solicitors. We are expert will dispute lawyers and will be able to explain how the law may support your claim. We can offer a free claim assessment and will usually be able to act on a ‘no win no fee’ basis.

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If a will dispute cannot be resolved it may be because the Testator's intentions are unclear

Interpreting the Testator’s Intentions: Tish v Olley

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Challenging a will can be complicated when it is unclear what the testator’s intentions were by the wording of clauses in their will. This is a particularly difficult issue for wills compared with other legal documents for the obvious reason that the person whose intentions are under question has passed away by the time of the will dispute. The recent case of Tish and Others v Olley & Ors [2018] EWHC 1069 (Ch) presents an interesting example of a will dispute over the wording of a clause and the approach of the court to interpreting the Testator’s intentions.

The Facts of Tish v Olley

Raymond Tish was a partner at an accountancy firm. Mr Tish died of motor neuron disease. In 2007, he was divorced from his third wife Amanda Tish. They had two children together: Arabella and Revan Tish. A consent order followed the divorce, which provided that Mr Tish should make annual payments to Amanda Tish to support herself and her children. Mr Tish was to pay his former wife £11,000 per year for each of his children from their marriage. After he became ill, Mr Tish had applied to the courts to have the maintenance payments reduced because he was not working as a result of his condition, so his financial circumstances had changed.

When Mr Tish passed away, his will contained the provision:

Maintenance

I give to my daughter Arabella Camille Tish and my son Revan Elliot Tish as shall survive me free of all taxes maintenance to be paid in relation to the current Court Order as may be amended in time, therefore if the maintenance is reduced then the reduced level can be accounted for.

The Dispute

The claimants argued that the “current Court Order” was referring to the consent order from 2007, and that Mr Tish had intended to make an annual gift to each of his children for the value of the annual payments he had been making under that order.

Louise Tish, Mr Tish’s fourth wife, argued that the clause should be considered inoperative because a consent order cannot be enforceable against someone who is deceased. She also argued that the clause was invalid because it was uncertain. Furthermore, the defendants submitted that the life assurance policy that Mr Tish had taken with Zurich would pay Amanda Tish, and this money would cover maintenance for Mr Tish’s children.

The Testator’s intentions were unclear and lead to the court using contract principles to establish his true intention.

Applying Contract Principles

The case of Marley v Rawlings and anor [2015] AC 129 was used to interpret the clause. In Marley v Rawlings Lord Neuberger stated that

When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions

Lord Neuberger’s list of criteria sets out a contextual approach to the interpretation of contracts. He then went on to say:

the court takes the same approach to interpretation of unilateral notices as it takes to interpretation of contracts

Therefore, the factors including the natural meaning of the words, and common sense are applied directly to the interpretation of the testator’s intentions in a will dispute.

The Judgement

Lady Justice Rose interpreted the Maintenance clause in Tish v Olley in favour of the claimants: the clause was intending to make a gift of the value of the yearly sums that would have been paid under the 2007 consent order, £11,000 per year to his children. The judge also described Ms Louise Tish’s arguments as far-fetched, and stated, “it seems to me very implausible that Mr Tish would deliberately include a provision in his Will that was in fact a gift of nothing.”

A contract is between two or more parties and their intentions are separate, whereas the decisions in a will are made on the Testator’s intentions alone. This case can be read as an example of how the principles of contract law with regards to intention can be applied to wills to arrive at a logical resolution.

Challenging a will can be difficult and involve complex legal issues. If you are disappointed by a will and would like to take advice about the options open to you, why not complete a free claim assessment to get the ball rolling? We are expert will dispute solicitors, specialising in all aspects of challenging a will, and can usually act on a no win no fee basis.

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inheritance act claims for reasonable financial provision

Inheritance Act Claims: What is Reasonable Financial Provision?

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Understanding Inheritance Act claims

Challenging a will through using the mechanism of Inheritance Act claims allows claimants to apply to court for reasonable financial provision from a deceased person’s estate, without questioning the validity of the testator’s will.

Section 1 of the Act outlines the list of potential Inheritance Act claimants, i.e dependants. People who can potentially claim under the act are:

  • Spouses and civil partners;
  • Former spouses or civil partners (so long as they have not entered a new civil partnership or remarried);
  • Individuals who lived with the deceased for a period of more than 2 years immediately before the deceased passed away;
  • Children of the deceased;
  • Any other person who, immediately before the testator passed away, was partly or wholly maintained by the deceased.

Section 2 of the Act sets out the definition of “reasonable financial provision”. Several cases that have tested this definition are set out below. 

Lewis v Warner [2017] EWCA Civ 2182

 In Lewis v Warner, Mr Warner made an Inheritance Act claim against the estate of his late partner of 19 years. In her will, the deceased had left the house where the couple had lived together to her daughter. However reluctant he was to move out of the house due to his various health problems and age of 91, Mr Warner turned down an offer from his late partner’s daughter to sell him the house for £425,000, describing it as an overvaluation.

 

A Roof Over One’s Head

As he and his partner had been unmarried, Mr Warner’s claim fell under Section 2(b) of the Inheritance Act, which states the definition of reasonable financial provision for all dependants other than spouses and civil partners:

“such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

The court had to ask: what was reasonable in all the circumstances for Mr Warner to receive for his maintenance? The court decided that “a roof over one’s head” qualified as maintenance, even though Mr Warner had been significantly wealthier than his late partner. The court ordered the deceased’s daughter to sell Mr Warner the house at market value.

The judge stated, if Mr Warner had been “younger and less infirm when the deceased died, he would indeed have been required to move out.” The court acknowledged that the wide definition of maintenance to include “a roof over one’s head” was reflective of all of the circumstances of the case i.e Mr Warner’s age and ill health.

Spouses and Civil Partners and Inheritance Act claims

Marriage and civil partnership play an important role in contentious probate law. Section 2 (a) and 2 (aa) of the Act explain that for spouses and civil partners, reasonable financial provision in Inheritance Act claims means:

“such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife [or civil partner] to receive, whether or not that provision is required for his or her maintenance”

It is interesting to note that the question of maintenance would not have been an issue in deciding what constituted “reasonable financial provision”, if Mr Warner and his late partner had been married.

 Roberts & Anor v Fresco [2017] EWHC 283 (Ch)

In Roberts & Anor v Fresco, Mr and Mrs Milbour were married, and both had children from previous relationships. Mrs Milbour passed away in January 2014, when her estate was worth over £16 million, leaving only £150,000 to her husband in her will. Mr Milbour passed away in October of the same year. He did not make an Inheritance Act claim.

While Mrs Milbour’s daughter inherited millions of pounds from her mother, Mr Milbour’s daughter and granddaughter were left only £320,000 from his estate. The court was asked to determine whether an Inheritance Act claim could be made on Mr Milbour’s behalf after he had died. The court decided that it was not possible to make a claim under the Inheritance Act on behalf of a deceased person.

The court found that Mr Milbour’s daughter could make a new Inheritance Act claim on the basis that she was effectively a child of the marriage between her father and Mrs Milbour and could therefore expect reasonable financial provision. As in the case of Lewis v Warner, such a claim would be subject to financial provision necessary for maintenance, as opposed to such provision as would be reasonable for a husband in the circumstances, not necessarily for maintenance. With a £16 million estate, it is likely that this amount would be lower than if she had been allowed to claim on behalf of her father.

Conclusions

Reasonable financial provision for the purposes of Inheritance Act claims is always measured based on all the circumstances of the case. As a result, the precise application of this term is different in every case. Marriage and civil partnership have a significant impact on the definition of reasonable financial provision, because spouses and civil partners can claim beyond what is required for their maintenance.

Should you feel that you should have received more under a will, it’s worth taking advice from a will dispute specialist. Will Claim solicitors can help, with a free claim assessment, and the option of payment through a ‘no win no fee’ agreement.

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worried about will fraud or forgery our will disputes experts can help

Forged Wills and Will Fraud

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Most will disputes arise from common grounds for a will dispute such as lack of testamentary capacity, undue influence or the Inheritance (Provision for Family and Dependants) Act 1975. However, some of the less common situations that give rise to will disputes are the grounds of forgery and will fraud.

Both forgery and will fraud occur when someone has deliberately interfered with a testator’s will to change who inherits property from the testator’s estate. Some examples of fraudulent situations are when someone has deliberately destroyed someone else’s will, or where someone has deliberately told the testator something untrue to convince them to change their will. Examples of forgery include creating a fake will or writing a false signature on a will.

If either will fraud or forgery is successfully proven, the fraudulent will is revoked, as it will not be a valid will, and the estate will be divided according to the most recent previous valid will. On the other hand, if there is no previous will, the estate will be divided according to the intestacy rules.

Suspicious Circumstances may indicate will fraud

There are some situations that suggest will fraud has taken place. Circumstances that can lead to a suspicion of will fraud include:

  • The witnesses to the will have a close relationship with the only beneficiary
  • A sudden radical change between the testator’s previous will and the testator’s new will, for example suddenly leaving property that was to be divided between beneficiaries to one individual
  • Before they died, the testator became heavily dependant on the beneficiary of a new radically different will, for example a carer
  • The signature on the will appearing to be different from the testator’s signature
  • A will that was made without the help of a solicitor (a “DIY” will)
  • The witnesses were not present when the will was signed

Burden of Proof in cases of forgery or will fraud

There is a high burden of proof when challenging a will on grounds of forgery or will fraud. This is partly because fraud is a serious allegation that can have criminal implications for the defendant. It is difficult to prove that someone has interfered with the will deliberately and for this reason, other grounds for a will dispute are considered easier to prove. Another challenge of alleging fraud is that there are usually few witnesses, as the testator has died before the dispute arises. For this reason, it is often difficult to find enough evidence to support a claim of will fraud.

The evidential burden is high because claimants usually need to consult a handwriting expert for an expert opinion on whether the signature on the will is genuine, or if it has been copied. A handwriting expert will need to look at around 15 examples of previous signatures by the testator to compare them to the signature on the will and decide whether the signature is genuine.

What to do if you suspect will fraud

It is important to contact a solicitor to find out what the best approach to challenging a will is in your situation. Claimants who suspect that there has been will fraud should consider challenging the will using different grounds because of the high burden of proof in will fraud cases. The suspicious circumstances that give rise to will fraud claims can also lead to other claims that are easier to prove:

For example, a claim for lack of knowledge and approval can be made if there is evidence that the testator did not know or approve of the will, which would likely be the case if the will has been made fraudulently. A claim of lack of testamentary capacity can be made if the testator did not meet the requirements for capacity to make a valid will, which may be the case if someone has been able to take advantage of them. If one of these other grounds for a will dispute succeeds, the will is declared invalid, so the claim will have the same result for you as a successful will fraud case, but with a lower burden of proof.

Will Claim solicitors are specialist will dispute lawyers. We can advise on all aspects of your will dispute and help you whether you consider a will to be invalid, or you wish to claim for a higher proportion of an estate under the Inheritance (Provision for Family and Dependants) Act. Get in touch to book an appointment with one of our will dispute experts.

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

A Reminder of the 5 Grounds to Challenge a Will

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Challenging a will requires a valid reason to go to court. Different grounds will be relied upon in a will dispute, depending on the particular circumstances under which the will was made. If you are unhappy with the contents of a will and the circumstances in which it was made, a vital first step in any challenge will be to establish the grounds on which you will challenge the will. The main grounds for challenging the validity of a will are explained below.

  1. Undue Influence

A valid will must be a statement of the testator’s intentions as to what will happen to their property when they die. A will is therefore invalid if the will has been made by the testator but while they were under someone else’s influence or control. There are a number of examples in caselaw which illustrate the principles of undue influence, and behaviour that could amount to undue influence – but it will always depend on the specific circumstances of the particular will.

In Edwards v Edwards [2007] WTLR 1387 it was decided that there is no presumption of undue influence with regards to will disputes: the burden of proving undue influence is potentially higher for wills than other contracts. Claimants challenging a will on grounds of undue influence will have to prove that coercion has taken place and that this has affected the provisions in the will.

    1. Challenging a will for Lack of Testamentary Capacity

Lack of testamentary capacity arises when the testator of a will does not have the required level of knowledge and understanding to create a valid will. Challenging a will on grounds of lack of testamentary capacity is particularly common when the testator suffers from Alzheimer’s disease or dementia.

The test to decide whether a testator had the necessary capacity to create a valid will was set out in Banks v Goodfellow (1870-71) L.R. 11 Eq. 472:

  • The testator must understand that they are creating a will and the consequences of this decision;
  • The testator must have an idea of their property and its worth;
  • They must know who their dependants are, as well as anyone who is expecting to inherit from the will.
  1. Challenging a will for Lack of Knowledge or Approval

When a will is validly executed, there is a presumption of knowledge or approval – that is to say that the testator knows what is in the will and approves it. The presumption of knowledge or approval does not arise in circumstances where the testator suffered from certain physical disabilities such as visual impairments and paralysis.

In any case, a will can be challenged for lack of knowledge or approval if the circumstances are such that the court finds suspicious. Suspicious circumstances can include, for example, a sudden extreme change in the testator’s intentions and where the testator has not taken legal advice before making their will. This will cast doubt whether the individual knew and approved of what they were agreeing to when the will was signed.

  1. Rectification

Rectification occurs when there has been a clerical error in the will, or the draftsman has been negligent, such that the will does not reflect the intentions of the testator. If there is a mistake in the will, the court will rectify it, using evidence of the draftsman’s notes when the will was produced. There is a six-month time limit from the grant of probate to make a claim for rectification.

  1. Forgery or Fraud

The grounds of forgery and fraud arise in the situation where a fake will document has been produced, or where the testator’s signature has been forged. Such a will is invalid for obvious reasons. Challenging a will using allegations of fraud is more difficult than other grounds of a will dispute because there is a higher burden of proof.

The Inheritance (Provision for Family and Dependants) Act 1975

In addition to the grounds of disputing the validity of a will set out above, there is an additional remedy for disappointed beneficiaries considering challenging a will, in the Inheritance Act. The Act makes it possible for those who were financially dependant on a testator to apply to the courts for reasonable financial provision if this is not provided in the will.  This type of claim does not challenge the validity of the will, but asks the court to make reasonable financial provision out of the testator’s estate.

For more advice about challenging a will, including information about how we can represent you on a ‘no win no fee’ basis, please get in touch with our specialist will dispute lawyers.

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in an inheritance dispute proprietary estoppel may assist where a promise that was made is not kept in a will

5 Things to Know about Proprietary Estoppel

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Proprietary estoppel is a principle that courts use to resolve disputes. Proprietary Estoppel arises when a defendant has made promises or assurances that property will pass to the claimant, and the claimant has relied on these assurances to their detriment.

For example, in Gillett v Holt [2001] Ch 210, a farmer, Mr Holt, made assurances to Mr Gillett that if he worked on his farm for far below the market rate for his work, Mr Gillett and his wife would inherit the property. When Mr Holt tried to give the property to someone else, the court ruled against him- he could not go back on his promise, as Mr Gillett had relied on it to his detriment. Proprietary estoppel arises in will disputes when someone has been promised property, has acted on this promise to their detriment, and then they are not left the property in the person’s will.

  1. Land and Farming

Proprietary estoppel relates to promises that are made with regards to land, and detrimental reliance is often established when the claimant has worked on the land. For this reason, proprietary estoppel cases often involve agricultural land.

For example, in the recent case of Habberfield v Habberfield [2018] EWHC 317 (Ch), a farmer’s daughter was promised that she would inherit the farm, and acted to her detriment by working on the farm for several decades and establishing a dairy farm on the land. When her father passed away and the

farm was not left to the daughter in the will, the courts used proprietary estoppel to establish her right to the value of the farm.

However, proprietary estoppel is not just for farm related will disputes: in the leading case of Pascoe v Turner [1979] 1 WLR 431, an unmarried couple lived together. The man told his partner that the house was hers, and she carried out significant improvements on the property. The court ruled in her favour as she had acted to her detriment in reliance on his assurances.

  1. Assurances

 When a will dispute gives rise to proprietary estoppel, it will be necessary for the claimant to establish that assurances, or promises, have been made. There is no set rule as to what exactly amounts to an assurance, and the court will look at evidence of what the testator said to the claimant.

As the testator will have passed away before the dispute, witness statements from third parties who do not have anything to gain from the dispute are of vital importance to a court, as they give an account of the relationship between the parties and any promise or understanding that was reached regarding the property. 

  1. Reliance

The claimant has to show that they acted in reliance on the assurances. Giving up the opportunity of paid work, making an expensive decision to move home, or working on the land itself are actions that can be regarded as reliance on a promise of inheriting land. 

  1. Detriment

Detriment can be established either by showing that the claimant has suffered loss as a direct consequence of their reliance on the defendant’s promises, or that they would have been in a better financial situation if they had done otherwise.

The extent of the detriment is a factor that is used when deciding on the nature and extent of the appropriate remedy. 

  1. Remedies in proprietary estoppel cases

Proprietary Estoppel can give rise to a wide range of remedies, from a transfer of the property into the name of the claimant, to damages in the amount of the property that was promised, or the loss that was suffered by the claimant. In Jennings v Rice [2002] EWCA Civ 159, the court decided that the appropriate remedy for a proprietary estoppel will dispute was the minimum amount necessary to “satisfy the equity”, i.e the minimum amount to make the situation fair.

If a claimant can successfully show assurances, reliance and detriment, then the court will use proprietary estoppel to consider the appropriate remedy for the situation.

If you are considering a will dispute, and you think proprietary estoppel may be involved, you will undoubtedly need legal advice to set out your claim in the best terms possible. Will Claim solicitors specialise in will disputes and have many years’ experience in this field. Get in touch to find out more about our services.

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some advice to help you manage costs in a will dispute

3 Ways to Keep Costs Low in a Will Dispute

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Challenging a will is potentially expensive, especially through the court system. If the judge rules in your favour, then in addition to any money from the estate, the judge might order the defendant to pay your legal costs. However, if the judge rules against you, as well as having to pay your own costs, you might be ordered to pay the costs of the other side. Will disputes can be appealed, which draws out the process and drives up the costs of hiring lawyers to represent you, potentially over a period of months or years. Three ways to manage the costs of challenging a will are discussed in this blog.

  1. No-Win No-Fee Arrangements help manage costs

A no-win no-fee arrangement is a potential way to keep costs manageable in a will dispute. In such an arrangement, you may not have to pay a lawyer to represent you, unless you win the dispute. Choosing a no-win no-fee arrangement prevents having to pay upfront, however the costs if you win the dispute might be higher. However, if you win the dispute, it is likely that any fees will be paid out of the money you gain from the estate, or from the other side. Before entering into a no win no fee arrangement, your solicitor will talk to you about the strengths and weaknesses of your claim and discuss likely outcomes as far as costs are concerned so you will have a clear idea about what may be involved.

  1. Mediation can reduce costs

The court system renders will disputes expensive due to the cost of hiring someone to advocate for you in court as well as the risk of having to pay legal fees for the other side if the judge rules against you. It can take a long time for a matter to get to court too, which means legal costs can mount up. Mediation is an alternative method of resolving a will dispute without going to court. Unlike other types of civil dispute, in contentious probate there is no obligation to attempt mediation before going to court. Although it is not mandatory, it is important to consider whether mediation might be right for you, especially as it lowers the costs of will disputes.

Mediation involves engaging in discussion with the other side, with your lawyers present, in order to come to a solution that works for both parties. Will dispute mediation often takes less time than going to court, and for this reason, is associated with lower costs. There are other advantages to mediation such as the flexibility it offers in the type of agreement that is reached.

  1. Building a Strong Case

In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, the daughters of a man who passed away after marrying his long-term partner shortly before his death challenged his will on the grounds of undue influence and lack of testamentary capacity. The father had owned the company White Horse. During the dispute, the claimants called 40 witnesses, driving up the legal costs.

The judge ruled against the claimants, who were ordered to pay the fees of the other side, a total legal bill close to £1 million. The judge commented,

“I received the evidence of 40 (often partisan) witnesses. There were times when the case seemed simply to be a vehicle for the settlement of every grudge that anybody had against White Horse and its participants.”

The case of Wharton v Bancroft (2011) EWHC (Ch) 3250 illustrates the dangers of stretching a will dispute beyond grounds that are likely to succeed. It is important to build a strong case, because the more likely a will dispute is to be successful, the less likely you will have to pay a large legal bill for an unsuccessful dispute.

A strong case has to be focused, and evidence should be relevant to the particular grounds of the will dispute. Grounds of challenging a will include undue influence and lack of capacity. It is also possible to challenge a will under the Inheritance (Provision for Family and Dependants) Act 1975, to petition the court if someone you were financially dependent on leaves a will that does not make reasonable financial provision for you. Depending on which grounds you use to challenge a will, there are appropriate steps to take in order to build a strong case and avoid high legal costs. It is prudent to seek advice from an experienced and reputable will claim solicitor throughout the process to make sure your challenge has a strong chance of success.

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

5 Things to be Aware of when Claiming Lack of Testamentary Capacity

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One of the ways to challenge a will is to make a case that the Testator, the person who made the will, did not have testamentary capacity. This is not always straightforward. In this blog, we look at 5 things to be aware of if you are considering a will dispute claim on this basis.

  1. Testamentary capacity or undue influence?

In order to be valid, a will must be made by a testator who has testamentary capacity, – that is, someone who is sound of mind enough to make a valid will. You can  challenge a will on the basis that the will itself is invalid, because the person who made it was not sound of mind at the time the will was made. Their mental state must be such that they could not have understood the consequences of their decisions for their estate when they made the will. Lack of testamentary capacity often arises in cases where the testator suffered from dementia or Alzheimer’s disease.

If the testator was sound of mind, but was under the influence of another person when the will was written, a claim for undue influence might be a more appropriate ground upon which to challenge the validity of a will. Alternatively, if you were financially dependant on a now-deceased person and their will does not adequately provide for you, it is possible to challenge the will under the Inheritance (Provision for Family and Dependants) Act 1975.  Rather than challenging the validity of the will itself, this would allow you to apply to the court for a different distribution of the testator’s property that provides you with reasonable financial provision.

  1. The test for testamentary capacity

It is important to be aware of what testamentary capacity means, and what elements the judge will be looking for to confirm whether or not the testator had such capacity. It was established in the case of Banks v Goodfellow (1870-71) L.R. 11 Eq. 472 that in order to have testamentary capacity, a claimant must:

  • Know what property they own, which will be distributed in the will: the claimant must know, for example, if they own a house, shares, money or other property, having a general idea of the extent of their wealth.
  • Be aware of who their dependants are, and who is expecting to inherit from the will.
  • Understand the nature of the document they are creating: the testator must know that they are making a will.

If the testator satisfies all of the above criteria, they will be deemed to have had testamentary capacity and the will dispute will fail.

  1. The Golden Rule and testamentary capacity

The Golden Rule is the general principle that a solicitor making a will on behalf of a client, who suspects that their client might not have testamentary capacity, should ensure that a medical professional conducts an examination of the testator before they make their will. This is because in a will dispute over testamentary capacity, medical evidence will be highly convincing to confirm that the testator was sound of mind when the will was made. When challenging a will for lack of testamentary capacity, it is therefore important to ascertain whether or not the Golden Rule was followed when the will was made.

The Golden Rule was established in the cases of Kenwood v Adams [1975] CLY 3591 and Re Simpson [1977] 121 SJ 224. In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, the judge decided that a solicitor had not been negligent in not adhering with the Golden Rule because “a solicitor… cannot simply conjure up a medical attendant”. Solicitors do not always follow the Golden Rule, but in cases where they do obtain medical evidence of testamentary capacity, a successful claim of lack of testamentary capacity will be very difficult to achieve.

  1. Not Just Wills

In the case of DMM, Re (2017) EWCOP 33, a claimant challenged her father’s capacity to marry. Marriage has the effect of automatically revoking any previous wills thanks to section 18 of the Wills Act 1837. Therefore, capacity is also a relevant issue in disputes over a deceased person’s estate, not just to wills, but other decisions made by the testator that will effect the distribution of their property.

  1. Family Consequences

Another issue to consider when challenging a will for lack of testamentary capacity is the strain that will disputes can have on families. Calling into question the testamentary capacity of a relative is likely to cause family tension. In addition to the high burden of proof, this is an important consideration to take into account when deciding whether there is sufficient evidence for a successful claim of lack of testamentary capacity.

If you have any concerns about a will that you are a beneficiary under – or think you should have been a beneficiary under – and would like to discuss whether it is possible to challenge the will, talk to us today. We are experienced will dispute solicitors, and can usually handle matters on a no win no fee basis.

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challenging wills and property co ownership

Property Co-Ownership and Challenging Wills

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Wills are not the only documents that affect the beneficiaries of a deceased person’s property: other property transactions can also result in different people being left with – and without – an inheritance. Challenging wills is a last resort, and it is important to note that a will dispute is not the only means of challenging the distribution of someone’s estate. If you have reason to believe that a property transfer made during the person’s lifetime was made, for example, with undue influence, it is possible to challenge this transaction in addition to challenging the will.

Joint Tenants or Tenants in Common?

Joint tenancy and tenancy in common are the two different legal terms used to describe the types of division of ownership of one property between multiple owners.

Tenancy in common means different people can own different shares of a property (for example, one person can own 75% the other 25%). Tenants in common can also leave their individual share of the property to someone in their will. Tenants in common do not automatically leave their share to the other tenants if they die.

Joint tenancy takes place when people acquire equal shares of a property at the same time. It is not possible to leave your share of a joint tenancy to someone in a will. Joint tenancy invokes a right of survivorship, meaning that if one tenant dies, their share of the property is automatically left to the other joint tenant or tenants. The right of survivorship is a crucial point for contentious probate matters because a property transaction to become joint tenants can result in someone automatically inheriting a house.

The Facts of Hume v Leavey and Hume

Hume v Leavey and Hume [unreported] is a recent case involving an elderly lady’s decision to put her house in her and her son Glen’s joint names, leaving the £350,000 property to him, and not to her two other sons. Mrs Hume also wrote a will leaving the entire of her estate to Glen. Her son John challenged the distribution of his mother’s estate, claiming that her decisions were made with the undue influence of his brother.

The court considered evidence of Mrs Hume’s close relationship with Glen due to their shared love of hairdressing, his decision to give up his hair salon to look after her, as well as her strong willed character that rendered her unlikely to be vulnerable to coercive behaviour. Mrs Hume was described as a woman who “knew her own mind”.

Judge Rosen ruled in favour of Glen, but acknowledged that John was “genuinely aggrieved” by the decision. In undue influence matters, there is a high burden of proof, and judges will make their decision based on whether they believe there was undue influence, not on the merits of the decision itself. It therefore does not matter whether Mrs Hume’s decision to leave everything to Glen was fair, only that it was her own decision.

The case of Brindley v Brindley [2018] EWHC 157 (Ch) involved a very similar situation: Mrs Brindley made her son Gordon joint tenant, effectively leaving him her house through the right of survivorship. Her other son Alan raised an undue influence claim. Alan’s claim was unsuccessful because his mother had taken advice from a solicitor before making her own decision to make Gordon joint tenant of her home.

Challenging wills – challenging property transactions

Recent case law indicates that joint tenancy can have a considerable impact on the distribution of a person’s property after they die, with hundreds of thousands of pounds in property value transferred to particular beneficiaries through the right of survivorship. When challenging wills it is reasonable to consider whether undue influence might also apply to property transactions.

It is possible that the high burden of proof for challenging wills can also apply to other transactions. As is the case with a will dispute, it is important to think carefully before challenging the legitimacy of a property transaction. In the case of Hume v Leavey and Hume, as the unsuccessful party, John was ordered to pay more than £40,000 towards his brother’s legal costs.

For expert advice on your will dispute or challenging wills, get in touch! We offer a free claim assessment, and can usually handle claims on a ‘no win no fee‘ basis.

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capacity to marry is based on many of the same principles as capacity to make a will

The Case of DMM: Alzheimer’s and Capacity to Marry

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Creating a will is not the only way that the distribution of property in someone’s estate can change. According to section 18 of the Wills Act 1837, getting married revokes previous wills. If a new will is made after they are married, this will be the valid will. In the absence of a new will made after they are married, the couple will be subject to the intestacy rules, which would render the new spouse the primary beneficiary of the testator’s estate. In the case of DMM, Re (2017) EWCOP 33, the daughter of a man (DMM) who had previously been diagnosed with Alzheimer’s disease, challenged her father’s capacity to marry. The Court of Protection had to decide whether DMM had the capacity to marry his long-term partner.

Capacity and Marriage

The potential grounds of challenging a will include lack of testamentary capacity. Contentious probate claims for lack of testamentary capacity usually arise if it is alleged that the testator of a will did not have the ability to understand the effects of their decisions, for example, due to Alzheimer’s disease or dementia.

The appropriate test for capacity to create a will derives from the case of Banks v Goodfellow (1870-71) L.R. 11 Eq. 472. To have the testamentary capacity to make a will, the testator must:

  • Understand the nature of the will: The testator must be aware that they are deciding how their property will be distributed.
  • Have an awareness of their assets, and what property they own.
  • Be aware of the potential beneficiaries, and people who are expecting to inherit from the will.

Marriage revokes a testator’s previous wills and can have a significant effect on a person’s estate. In the case of DMM, Judge Marston decided that the appropriate test for capacity for marriage is that the person can understand, retain use and weigh the relevant information: that the marriage will have the effect of revoking their previous will and that this will effect the beneficiaries of their estate.

The Judgement

Judge Marston reviewed the evidence of a consultant psychiatrist, Dr Hugh Series, who had conducted an interview with DMM, to determine whether DMM understood that he was getting married, that a consequence of this would be that his will would automatically be revoked, and that this could impact the inheritance of his daughters if he did not create a new will after getting married. Mr Series stated,

“It was clear that DMM retained and understood the fact that we were discussing the potential consequences of his marriage to the First Respondent throughout the two hours or so of the interview.  In particular he understood that his children might receive less than before and the First Respondent might receive more.”

After a two-hour interview with DMM, the psychiatrist concluded that he understood the relevant effects of his decision to marry his partner. The claimant requested that the judge require a second interview between DMM and the psychiatrist under more rigorous conditions. However, the judge was satisfied that the interview had been sufficient evidence to proceed, and concluded that DMM did indeed have the capacity to marry.

Conclusions

At the end of the judgement, Judge Marston stated that “DMM suffers from a degenerative disease and he is going to need the help of all those who love him in the very near future.” Given the degenerative nature of Alzheimer’s disease, it is possible that after marriage, a person’s testamentary capacity will be reduced further.  The likelihood of creating a new valid will therefore has the potential to decrease over time, so it is possible in cases involving Alzheimer’s disease that the intestacy rules will make the spouse the primary beneficiary.

When challenging a will, it is important to be aware of the legal effect of marriage on a testator’s estate, especially if they have reason to believe that there is already a lack of capacity when the testator decides to get married.

For expert advice on your will dispute, get in touch! We offer a free claim assessment, and can usually handle claims on a ‘no win no fee‘ basis.

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What steps could be taken to prevent will disputes? We offer some reflections

The Benefit of Hindsight: What Could Have Been Done to Prevent Will Disputes

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We look at some lessons from case law that may help prevent will disputes in the future.

Making a will is an important step for you to take to ensure that you property will be distributed as far as possible according to your wishes when you die. Without an up to date will, property will either be distributed according to a previous will, which might not reflect your wishes, or the intestacy rules. A will dispute arises when a either beneficiary under a will, or someone who was financially dependent on the testator, or an individual who believes the will was not properly made, challenges the will.

There are several ways someone could challenge your will. It is possible to challenge the validity of a will for lack of testamentary capacity, for example. Someone who you support financially when you are alive might claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975, without questioning the validity of the will itself. Examples of what you as a Testator (the person making the will) could have done to prevent will disputes arising out of lack of testamentary capacity and the Inheritance Act are considered in this blog.

Lack of Testamentary Capacity and The Golden Rule

‘Testamentary capacity’ is necessary to create a valid will. This term refers to the level of understanding that the Testator has of the will and its consequences. The Golden Rule is the general principle that a solicitor, who is preparing a will and has reason to suspect that the testator might not have testamentary capacity, should arrange a medical examination of the testator to ensure that they have capacity. The Golden Rule is especially relevant where the testator is showing symptoms of dementia.

In the case of Key v Key [2010] EWHC 408 (Ch), a solicitor made a will for an 89 year old man whose wife had passed away less than a week before. The solicitor failed to follow the Golden Rule, and the will was successfully challenged for lack of testamentary capacity. In the judgement, the judge stated:

“Mr Cadge’s failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client’s children have subsequently fallen.”

When solicitors follow the Golden Rule, the resulting medical evidence that the testator had testamentary capacity is very likely to successfully defend against a will dispute for lack of testamentary capacity. Failure to adhere to the Golden Rule can lead to a will dispute, and as in the case of Key v Key, cause a great deal of family strain.

Inheritance Act and Codicils could prevent will disputes

In the case of Roberts & Anor v Fresco [2017] EWHC 283 (Ch), a woman whose estate was worth £16 million passed away, without leaving reasonable financial provision for her husband. Her estate was left mostly to her only daughter. The husband unfortunately passed away before he could make an Inheritance Act claim, and only £320,000 was left under his will to his daughter (the woman’s step daughter).

A codicil is a document that officially changes the provisions of a will. Instead of making an entirely new will, it is possible for a testator to make a codicil to adapt the way in which their estate will be divided. Like a will, a codicil must be signed and witnessed. Codicils are common in situations where a person gets married or has a child, for example, because this alters the set of people who are dependent on them financially. The case of Roberts & Anor v Fresco is an example of an estate that would potentially have been distributed very differently if the testatrix had changed her will via codicil when she married her husband.

Conclusions

Unfortunately, testators can fail to consider methods of establishing testamentary capacity, or keeping updated codicils to ensure that their will accurately reflects their changing wishes. It is important for will disputes claimants to be aware of the problems with a will when it was made, or changes in the testators’ circumstances during their lifetime, to help determine whether a will dispute has the potential to succeed.

For expert advice on your will dispute, get in touch! We offer a free claim assessment, and can usually handle claims on a ‘no win no fee‘ basis.

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

How Does Probate Work?

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What is Probate?

When someone has passed away, there is a series of steps that must be taken with regards to their property, in order gain the right to distribute the estate according to their wishes as set out in their will – or if there is no will, the rules of intestacy. Probate is the process by which a deceased person’s will is declared valid, and executors of the will are given the right to wind up the person’s affairs and distribute their property according to the provisions in the will.

The role of the executor in probate

Wills have executors, individuals appointed with the responsibility to deal with the property in the will according to its provisions. This will involve paying off all of the person’s debts and transferring property or money to the beneficiaries named in the will. Executors are appointed specifically by name in the will document. In order to gain the right to distribute the property, for example, by gaining access to bank accounts, the executors must first apply for a grant of representation.

Steps to Applying for a Grant of Representation

Firstly, if it has not already been done, the executors must register the death and acquire the death certificate. Secondly, often with the help of a solicitor, the executor must complete a probate application form: “form PA1”.

Inheritance Tax Form

The executors will then complete the inheritance tax form. There is no inheritance tax to pay on an estate that is left entirely to a spouse or civil partner. Also, if the estate is worth less than £325,000, there will not be inheritance tax to pay. The standard rate of inheritance tax is 40%, payable on anything over the £325,000 threshold. (The first £325,000 will not be subject to inheritance tax).

It is vital to fill out the inheritance tax form, even if the executor does not think there is inheritance tax to pay.  Moreover, it is important for the executors to complete the inheritance tax form carefully because there are financial penalties for submitting a form with incorrect information.

Sending The Application: Things to Include

Next, the application must be sent to the Probate Registry. The application for a grant of representation should include:

  • An official copy of the deceased person’s death certificate
  • The PA1 Probate Application Form
  • The Inheritance Tax Form (as explained above)
  • A £215 application fee
  • The original will, as well as 3 photocopies and any codicils (official documents that update the will)

Swearing an Oath

Finally, once the application has been processed, the executors of the will are sent an oath that the information they have provided is correct. The executor will then arrange an appointment at the local Probate Office to swear the oath. This is the final step to applying for a grant of representation.

The Position if there is no Will

When someone dies without a will, an administrator will be appointed carry out the distribution of their property. If you are the next of kin of the deceased person, such as their spouse or child, you can apply for a grant of representation to act as administrator. The administrator will oversee the distribution of property according to the intestacy rules. The intestacy rules outline the order of who will inherit from a deceased person who did not leave a will.

Challenging a Will

If you have concerns about the validity of a will, and are considering raising a will dispute, it is advisable to challenge the will before probate is granted to the executors. To raise your concerns, it is necessary to enter a caveat at the Probate Registry. In order to enter a caveat, you must complete the PA8A Form and submit a £20 fee to the Probate Registry. If there is a caveat on the will, probate will not be granted until your will dispute is resolved. Therefore, it is important to act quickly and enter the caveat as soon as possible to prevent the estate from being distributed based on the provisions of a will that you believe to be invalid.

If you are concerned about a will and need advice about how to act fast before probate is granted and the deceased’s property is distributed, get in touch with us at Willclaim solicitors. We are experts in handling will disputes, and can usually act on a no win no fee basis. Call us on 020 3322 5103, or complete our free claim assessment request.

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Undue influence is hard to prove - read out blog

5 Things to Know About Undue Influence

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What is Undue Influence?

 Undue influence is a ground upon which to challenge a will, calling into question the validity of the will itself. Claims for undue influence are made when someone suspects that the testator (the person who made the will) was under the influence of another person at the time the will was made. If a court finds that the will was made, either under coercion, or in circumstances where a vulnerable person was taken advantage of, the will might be declared invalid.

In Edwards v Edwards [2007] WTLR 1387, Mr Justice Lewison stated that when determining whether or not a claim of undue influence should succeed,

The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.

A will is therefore supposed to be an expression of the wishes of the testator, not those of someone else.

If you are thinking about challenging a will because you think the testator was unduly influenced by someone else, here a 5 key things you should know.

  1. The high burden of proof

The high burden of proof is an important consideration to take into account when challenging a will based on undue influence. It is the responsibility of the claimant to prove to the court that the testator was the subject of undue influence. In the case of Edwards v Edwards [2007] WTLR 1387, Mr Justice Lewison set out an approach for determining whether undue influence has taken place. He stated,

The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis.

Therefore, in order to prove undue influence, the claimant must be able to show that there is no reasonable explanation for the testator’s decisions in the will, other than that they were unduly influenced by another person. The judge also described this as a high burden: it is difficult to prove that undue influence is the only possible explanation for a given set of facts. 

  1. The difficulty of gathering evidence

Given the high standard of proof required to succeed in a claim of undue influence, you will need to gather strong evidence that the testator was vulnerable to undue influence when the will was written. It is always difficult, because the best person to give evidence about what was going on when the will was written is dead, but other helpful evidence can include:

  • Letters, emails or other communications that indicate the testator’s relationship with the alleged influencer, or their state of mind at the time the will was made.
  • Medical evidence: this might be relevant if the testator had some medical condition that may have made them vulnerable to coercion.
  • Witness statements from people who knew the testator, to support an undue influence claim.
  1. The possibility of family strain

Undue influence claims often involve family members of the deceased. For obvious reasons, accusing a relative of coercing another family member into leaving them an inheritance can have negative consequences for family relationships. It is important to consider these potential consequences of going to court against a family member for an undue influence claim. Mediation is a potential option to alleviate some of this family pressure.

  1. The existence of third party legal advice

In the recent case of Brindley v Brindley [2018] EWHC 157 (Ch), the court refused to allow a claim for undue influence when an elderly woman made her son a joint tenant of her property, effectively leaving the house to him, and not her other son. The mother had sought legal advice from a solicitor on her decision, and the solicitor gave evidence that the mother had chosen of her own free will to leave the house to her son, in full awareness of the consequences of that decision.

If the testator made it clear to others at the time the will was made that their intentions were their own, this will undermine an undue influence claim: undue influence claims succeed if the testator was under the influence of another when a decision was made. The question of whether or not the decision itself was unfair is irrelevant.

  1. Too many grounds for a Will Dispute

In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, a deceased man’s daughters challenged the validity of his will due to undue influence. However, the daughters also claimed other grounds for disputing the will: want of knowledge and approval and lack of capacity. They called forward nearly 40 witnesses and when they lost the case, they were ordered to pay their own legal costs, as well as the costs of the other party, close to £1 million in total.

Challenging a will is an emotional process, and it is important to keep clear sight of the reasons why the will should be made invalid, as well as to ensure that you present a strong and focussed case that meets the high standard of proof. Introducing too many grounds for the dispute might undermine the case, as well as potentially inflating the legal costs of an unsuccessful dispute.

As specialist will dispute solicitors, we can advise you on the strength of your undue influence claim based on the evidence you have. We can also advise on any additional evidence that would be helpful to your case, and we can explain the process before you go ahead. We can usually handle cases on a no win no fee basis, making legal fees easier to manage. Call us today on 020 3322 5103, or complete our free online claim assessment request.

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take independent legal advice to avoid a challenge to your will later on

Legal advice and Undue Influence

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One ground for a will dispute is undue influence: when someone has been pressured or coerced into signing a will or other contract that affects their estate. The case of Brindley v Brindley [2018] EWHC 157 (Ch), provides an example of an undue influence claim which failed because the testator, the mother of the claimant, had sought independent legal advice before making the transfer.

The Facts of Brindley v Brindley

Mrs Brindley passed away when she was 83 years old, and living with her son Gordon Brindley. Mrs Brindley had previously lived with her son Alan, but then moved in with Gordon, leaving her pets behind. While Gordon and his mother were living together, Alan voiced his concerns to a solicitor that he thought Gordon might be having undue influence over his mother. Another solicitor met with Mrs Gordon, and subsequently wrote her a letter explaining his view that Mrs Brindley was not under any undue influence.

The brothers fell out while Mrs Brindley was living with Gordon, and at one point Gordon called the police to complain that Alan had come to the house. Two members of the local authority adult safeguarding team went to meet Mrs Brindley to form an assessment of whether she was under undue influence; they concluded that she was not. Alan and Gordon exchanged a series of emails arguing over their mother, and Alan’s refusal to return her pets. The pets were eventually returned in bad health, under a consent order.

Mrs Brindley created a joint bank account with Gordon, and then made him joint tenant of her house in Cornwall. The effect of being joint tenants is that when one tenant dies, the other inherits the property through the rights of survivorship. Alan argued that Gordon had pressured his mother with undue influence, into making the decision to effectively leave him her house.

Undue Influence

This ground for a will dispute arises when someone close to the testator has asserted so much influence over their decisions as to render the will invalid. This can occur when there is a relationship of trust and confidence between the influencer (often a family member) and the testator of a will, and the influencer gives the testator incorrect or misleading information about the effects of their decision.

Lord Nicholls stated in the case of Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44, that undue influence can also arise if someone has exploited, or coerced a vulnerable person. Undue influence is a common ground for a will dispute in cases where the testator was being bullied or otherwise pressured when their will was made.

The Judgement in Brindley v Brindley

Judge Klein, the judge on the case, noted:

both Alan and Gordon spoke of Mrs Brindley’s strong personality. There is nothing to suggest that Mrs Brindley’s character was ever such that she was incapable, at any time, of saying where and with whom she wished to live.

He concluded, based on the account of Mrs Brindley’s assertive character, that Gordon’s relationship with Mrs Brindley was not one of coercion. The judge also noted that it was Gordon’s suggestion that Alan should send the local authority adult safeguarding team to assess the situation, and that it was highly unlikely that someone who was coercing another would make such a request.

However, the judge decided that there was a relationship of trust and confidence between Mrs Brindley and Gordon. He also concluded that Mrs Brindley made the initial contact with a solicitor, to request a joint tenancy, because of Gordon’s encouragement to do so, and his omission to fully explain to her the consequences of a joint tenancy: that Gordon would inherit the house.

Having taken evidence from Mr Freeman, Mrs Brindley’s solicitor, the judge was convinced that despite Gordon’s omission, Mr Freeman had properly explained the consequences of the joint tenancy to Mrs Brindley.  The judge concluded that there was a reasonable explanation for the decision to make Gordon a joint tenant – Mrs Brindley had decided to do this herself and without any pressure. The transfer could not be overruled for undue influence.

Independent Legal Advice

Inheritance disputes can arise, not only out of wills, but also from property transactions conducted before the owner of an estate has passed away. If Mrs Brindley had not sought the advice of Mr Freeman, it is possible that the judge would have ruled that she was under undue influence when the transaction was made. Furthermore, the testator of an estate having obtained independent legal advice on their decisions can provide a strong defence against an undue influence contentious probate claim.

For people considering making a will, the case serves as a reminder of the importance of taking independent advice. For those considering challenging a will, it highlights that if the testator has taken independent legal advice, it may be more difficult to challenge the contents of the will.

Willclaim Solicitors specialises in will disputes. For advice about the strength of your claim, you can get in touch by phone to book an appointment by calling 020 3322 5103, or complete our free claim assessment request.

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Our guide to the role of the courts in a will dispute

The Role of the Courts in a Will Dispute

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You may be concerned about a will and be worried that it doesn’t reflect the real intentions of the person who made it, or feel that you should have received a greater share of the estate. Challenging a will can be a daunting process, especially if you have no experience of the legal system and how the courts work. In this blog, we explain the role of the courts in a will dispute.

Starting the Process in the Courts

When contesting a will through the courts, it can be difficult to know where to start.

First, it is important to contact a solicitor and develop a clear plan for what grounds to challenge the will, before deciding whether to bring the will dispute to court. Grounds for challenging a will include:

  • Lack of testamentary capacity: if the testator was not in a fit state of mind to make a will;
  • Undue influence: if another person had undue influence over the testator’s decisions about the will;
  • Inheritance (Provision for Family and Dependants) Act 1975: claims for reasonable financial provision if the dependants on the deceased are not properly looked after financially under the terms of the will; this type of claim does not challenge the validity of the will itself.

Next, with the help of a solicitor, you may consider registering a “caveat” at the Probate Registry Office to prevent property from being distributed through the will until after your dispute has been resolved. The beneficiaries will be informed of your claim on the will. If they do not agree and the dispute continues, the case may be taken to court.

Civil Courts

Contentious probate cases are heard in the civil court system. The case will initially take place in either the High Court, Chancery Division in Central London, or a local Court which has a High Court Chancery District Registry. However some County Courts such as the County Court in Central London can also hear these cases. In a will dispute, there will be a judge, but no jury. The judge will hear the evidence on both sides, and finally make a judgement on the facts of the case and the outcome.

If there are disagreements over what happened when the will was made, the judge will decide which version of the facts to accept. This will be on balance of probabilities (i.e what is most likely to have happened based on the evidence). Judges will usually accept some facts but reject others from both sides of the dispute. The judge will decide on this basis whether the claim should be successful, how much money to award the successful party, and which party should pay the legal costs.

The Appeals System

An unsuccessful party can request an appeal, but the judge will only agree to appeal the case to a higher court if there is a reasonable prospect that their case could succeed. If the case is appealed from County Court, then it will be heard at the High Court; for contentious probate matters this will be the Chancery Division of the High Court. A further successful appeal would be brought to the Court of Appeal. Finally, if there is a particularly complex point of law (a legal question which has no clear answer), the case could be appealed further to the Supreme Court. However, it is rare for contentious probate matters to be appealed to that level.

Legal Costs  

Challenging a will can be expensive, and once a case goes to court legal fees will quickly add up. At the end of the dispute, the judge will decide which party is ordered to pay legal costs. There is a general rule in civil litigation that the unsuccessful party pays both their own costs, and also the costs of the successful party. However, judges have discretion as to which party should pay.

Alternatives to the Court System

Contesting a will through the court system is a stressful and lengthy process, especially considering additional risk of the will dispute being appealed. However, there are alternative methods of dispute resolution available. For example, it is possible to settle a will dispute through mediation. Unlike other types of legal disputes, contesting a will does not require mediation; it is merely an option. Benefits of choosing mediation instead of going to court include flexibility of possible solutions to the dispute, lower legal costs, and the possibility of reaching an outcome much quicker than through the court system. You can read about this in more detail here.

As will dispute experts, we regularly resolve claims for our clients through negotiation and mediation. Where these avenues prove unsuccessful, we are experienced at pursuing these cases through the court system for our clients. To get in touch to discuss your claim, Call us on 020 3322 5103, or complete our free claim assessment request.

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buying a house at market value can amount to reasonable financial provision under the Inheritance Act

Reasonable Provision: An Update on Lewis v Warner

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An update on the case of Lewis v Warner – a case which looked at reasonable financial provision under the Inheritance Act, which was appealed recently to the Court of Appeal.

Claiming Reasonable Financial Provision under the Inheritance Act 1975

Under the Inheritance (Provision for Family and Dependants) Act 1975, dependants of a deceased person can claim reasonable financial provision when the will does not adequately provide for them. We’ve looked at the case of Lewis v Warner , before. The case was unusual in that instead of claiming money – which is the usual case in Inheritance Act claims, Mr Warner wanted right to purchase his late partner’s house at market value, to avoid having to move out. Since the previous blog, this case has been further appealed to Court of Appeal, so we thought it was worth revisiting for an update.

 

The Facts of Lewis v Warner

Mr Warner was 91 years old, when his partner of 19 years, Mrs Blackwell passed away in 2014. Mr Warner was considerably wealthier than the deceased. Mrs Blackwell developed a form of dementia and it became clear that she was unlikely to live very long. Her daughter, Mrs Lewis then asked Mr Warner to sign a document expressing his intention not to make a claim on the house, to which he agreed.

Mr Warner had various medical problems, including carpel tunnel syndrome, arthritis and intestinal problems that caused him stomach pains. Due to his age and health problems, Mr Warner was reluctant to relocate after his partner passed away. Mrs Lewis told Mr Warner that she did not want him to rent the house, but that he could buy it instead. An offer to sell the house to Mr Warner for £425,000 was made in writing, but Mr Warner rejected the offer as an over valuation, leading to a will dispute.

Mr Warner made an Inheritance Act claim. At first instance, the judge found that reasonable provision had not been provided, and ordered Mrs Lewis to accept market value for the house from Mr Warner. The case was appealed to the High Court, which upheld the judgement.

 

The Court of Appeal

The Court of Appeal answered two questions:

  • Firstly, whether the provision of “a roof over one’s head” constitutes maintenance; and therefore the will had failed to provide reasonable provision for the purposes of The Inheritance (Provision for Family and Dependants) Act 1975
  • Secondly, whether the order that Mrs Lewis should accept market value for the property was lawful.

 

The First Question: Definitions under the Inheritance Act 1975

Section 1(2)(b) of the Inheritance (Provision for Family and Dependants) Act 1975 defines “reasonable financial provision” as:

“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

In Lewis v Warner at first instance, it was found that “maintenance of a roof over Mr Warner’s head had meant that the deceased had provided him with ‘maintenance’, which had a financial value within section 1(2)(b) of the 1975 Act”. Mr Warner could therefore claim under the Inheritance Act because his partner had been providing him with maintenance.

This decision was upheld in the High Court because the judge struck a balance between the fact Mr Warner had no moral claim on the property (he had not been promised the property, nor did he and his partner have an understanding of what would happen to it after she died), and the importance for an elderly man in Mr Warner’s circumstances, of remaining in his home. The judge in the Court of Appeal, Sir Geoffrey Vos, decided that this balance had been properly struck, and on the first question, upheld the High Court decision.

The Second Question: The Order to Accept Market Value

Section 2(1)(c) of the 1975 Act empowers a court to order the transfer of property to a successful Inheritance Act claimant. Although unusual, it is also possible for a court to order the transfer of property in exchange for consideration in response to  a claim for reasonable financial provision.

In the Court of Appeal, Sir Geoffrey Vos decided that because the previous courts had been correct to find a lack of reasonable financial provision in the will, it had been just to order the transfer of property in exchange for market value. As well as allowing Mr Warner to live in the house, this also appropriately protected the interests of the beneficiary Mrs Lewis because she would receive a fair sum for the property. On the second issue, the judge therefore upheld the previous decisions, and the appeal was dismissed.

Conclusions

Typically, in a will dispute, a successful claimant under the Inheritance Act would have been in a less favourable financial position than the deceased. However, when partners live in the same house, it is possible for one to depend on the other for maintenance, even if the owner of the house was less wealthy. This can change the approach to reasonable financial provision. It is also interesting to note the Court of Appeal judge’s comment, that if Mr Warner had been “younger and less infirm when the deceased died, he would indeed have been required to move out of the property”. Exactly what constitutes “maintenance” and “reasonable provision” under the Inheritance Act, depends on the specific circumstances of the case.

As the outcome of every will dispute depends on the specific circumstances of the individual case, it’s worth obtaining specialist legal advice before proceeding. If you would like to take advantage of our free claim assessment service, please get in touch.

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

3 Key Points about the Golden Rule

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If you’re worried about the contents of a will and believe the person who made it was showing signs of dementia or mental vulnerability, it is well worth checking whether the solicitor who made the will followed the Golden Rule.

What is the Golden Rule?

The Golden Rule is an obligation for the solicitor preparing a will to ensure that the testator has sufficient mental capacity when the will is made. Furthermore, the Golden Rule applies to situations where the solicitor has reason to doubt whether the testator is of sufficiently sound mind to make a valid will. This could arise, for example, if a testator has exhibited erratic behaviour, or if an elderly testator is showing signs of dementia.

The Golden Rule means that solicitors are generally expected to obtain a documented assessment from a medical professional as to whether or not the individual making the will has testamentary capacity when the will is made. This obligation was established in Kenwood v Adams [1975] CLY 3591 and later confirmed in Re Simpson [1977] 121 SJ 224.

Build a strong case supporting your will dispute claim

In the absence of the relevant medical examination, claimants can build a stronger case for a will dispute on grounds of lack of testamentary capacity. As well as leading to a potential will dispute, professional problems can arise for solicitors who have failed to take the necessary precautions required by the Golden Rule. Three key points about the Golden Rule are set out below.

 

  1. Understanding Testamentary Capacity

The requirements for an individual to have testamentary capacity are set out in Banks v Goodfellow (1870-71) L.R. 11 Eq. 472:

  • The testator must understand what assets they are leaving in the will. This requires a general knowledge of what property they own, their money, shares and other investments.
  • The testator must know or understand the nature of the document they are signing. The testator must know they are creating their will and understand the effect of the decisions set out in the will. They must understand that the will determines how their property will be divided up after they die, and whom will benefit by how much under this particular will.
  • The testator must also know who their dependants are, and have an awareness of which people they are obligated, morally or through family ties, to include as beneficiaries of the will. This provision can be complicated in cases where the testator’s memory is compromised, for example by dementia.

 

  1. Obtaining Evidence

When challenging a will on grounds of lack of testamentary capacity, it is important to gather evidence that the testator did not have testamentary capacity at the time the will was created.  Examples of evidence that could strengthen your claim include:

  • Medical evidence such as hospital records
  • Statements from friends and family of the testator who can describe the testator’s state of mind when the will was signed
  • Emails, letters or other documented communications of the testator around the time the will was made.

 

  1. An Uncomfortable Conversation

For a solicitor preparing a will, following the Golden Rule is potentially uncomfortable, as it involves suggesting to a testator that they have their mental capacity assessed by a medical professional. However, this does not absolve the solicitor of the responsibility to ensure that wills they prepare are signed by an individual with testamentary capacity, and are therefore valid. The risks involved in failing to assess the mental capacity of a testator are great enough that in many cases, it is worth the discomfort of suggesting a medical evaluation.

Conclusions

Following the Golden Rule by obtaining a documented medical assessment of a testator’s mental state, is a responsible way for a solicitor to avoid a will dispute. However, it is important to note that for someone challenging a will, the fact that a solicitor has not followed the Golden Rule, does not guarantee a successful claim of lack of testamentary capacity. A court might find that the testator did indeed have testamentary capacity, even if the solicitor failed to obtain a medical examination when the will was made. Therefore, in a will dispute over testamentary capacity, regardless of adherence to the Golden Rule, it remains important to gather strong evidence that the testator did not satisfy the conditions for capacity set out in Banks v Goodfellow.

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in an inheritance dispute proprietary estoppel may assist where a promise that was made is not kept in a will

Proprietary Estoppel in an Inheritance Dispute

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Proprietary Estoppel is a legal term that can mean very little to anyone who isn’t a lawyer. In an inheritance dispute, proprietary estoppel can offer a small but practical ray of hope when a will doesn’t reflect a promise that was made to someone by the testator while he or she was alive.

What is Proprietary Estoppel?

Proprietary estoppel is a principle used in the courts to allow individuals to gain certain rights over property that legally belongs to someone else. This method is used when the legal owner of property enforces his or her strict rights in a way that is unfair to someone with an interest in that property. The principle of proprietary estoppel is based on a promise by the owner, upon which someone else has acted to their detriment.

On example of proprietary estoppel at work in an inheritance dispute is the case of Gillett v Holt [2001] Ch 210. In this inheritance dispute, the legal owner of a farm made promises that Mr Gillett would inherit his property, and Mr Holt acted to his detriment by working on the farm for decades and turning down other employment due to Mr Holt’s repeated promises that Mr Gillett would inherit the farm. The court decided that it would be unconscionable for Mr Holt to break that promise and ruled in Mr Gillett’s favour.

Another proprietary estoppel case involving a farm, is the recent High Court case, Habberfield v Habberfield [2018] EWHC 317 (Ch). Lucy Habberfield successfully claimed over £1 million after her father died, leaving his farm to his wife.

The inheritance dispute in Habberfield v Habberfield

For over 30 years, Lucy Habberfield worked on Woodrow Farm, which belonged to her father Frank. When Lucy left school at 16 years old, her father introduced cows onto the farm because Lucy had agreed to look after the dairy farm operation. Mr Justice Birss, the judge in the case, commented,

 “Based on the evidence of a number of witnesses before me, it is plain that the work done by family members on a family run dairy farm involves an intense degree of commitment and effort.”

Frank Habberfield died in 2014, leaving the farm and all of his property to his wife Jane Habberfield, Lucy’s mother, in a will that was written in 1998. Lucy made a claim of proprietary estoppel on the basis that she had worked on the farm because of her father’s repeated promises that she would run the farm upon his retirement, and eventually inherit the property. Lucy’s mother Jane contested this view, and claimed that no such promises had been made.

The Judgement

As well as evidence from witnesses describing Lucy’s position on the farm, Lucy’s case relied heavily on a letter written in 2008 from a chartered surveyor to Jane and Frank. The letter advised the couple to establish a limited partnership on the basis that their plan was to leave the farm property to Lucy when they both died. The letter was considered to be evidence of Frank’s intention that Lucy should inherit the farm eventually, and supported her claims that Frank had repeatedly promised that she would inherit the farm.

Proprietary estoppel requires the claimant to have acted to their detriment on the basis of promises made. Lucy and her husband raised their children on the farm, and Lucy claimed she had worked long hours and holidays for low pay, based on the promises her father made that she would inherit a dairy farm at Woodrow. The judge found that Lucy had kept her end of the bargain by working on the farm, and therefore it would be unfair not to enforce the promise.

Remedy

Jane, her son and grandson were still living in the farmhouse, so the judge said it would be unfair to split the property, or to remove Jane from her home. Instead, the judge decided to award the cash value of Woodrow Farm including the dairy farm buildings: a total award to Lucy of £1,170,000.

Conclusions

It is common for proprietary estoppel cases to involve farmland. It is therefore important for people who own a farm, or another form of family business, to establish with transparency, a clear plan for what happens to the business when the person in charge dies or retires. The case of Habberfield v Habberfield serves to illustrate the importance of making up-to-date wills, especially for family business owners, to avoid broken promises.

If you are considering an inheritance dispute, it is always worth talking to a solicitor who specialises in contentious probate and will disputes. We offer a free claim assessment to take a look at your inheritance dispute and provide initial advice. If you decide to proceed, we can usually act on a no win no fee basis too.

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5 benefits of mediation in a will dispute

Five Reasons to Consider Mediation in a Will Dispute

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What is Mediation?

Disputing a will can be expensive, time consuming and emotionally draining if pursued through the courts. Mediation is an alternative approach to consider when deciding how to contest a will. This involves negotiating a settlement with the other party, outside of court. A will dispute is different to other types of legal claim because mediation is optional, not required. Five reasons to consider the option of taking a mediation approach are set out below.

  1. Financial Benefits of Mediation

Challenging a will is an expensive process because of the costs involved in hiring lawyers to represent you: when a will dispute is brought into court, legal fees amount to tens of thousands of pounds. If you lose your claim, you will not retrieve extra money or assets from the will. In addition to your own legal costs, it is likely that you will also have to pay legal expenses for the other side.

Even if you win the will dispute, the extra money gained from the will might have to go towards paying certain legal costs. Therefore, mediation is generally a less expensive method of resolving a will dispute because it eliminates a large portion of the legal costs associated with going to court.

Also, decisions made by judges are generally rigid in terms of their financial considerations. A judge is unlikely to consider the complex tax implications of a judgement for contentious probate. However, if you settle a will dispute through mediation, it becomes possible for both parties to seek a tax efficient structure for the settlement.

 

  1. Control of the Process

A courtroom is a formal setting with strict rules about who can speak and when. In court, claimants and defendants can only speak when questions are addressed to them, or to give evidence. You might feel in a courtroom that control over your will dispute is taken out of your hands or that you have not had an opportunity to talk through some of the issues that are important to you.

By contrast, in mediation, it is possible to make arguments and hold discussions in a less formal setting, where you do not need to adhere to the same rules of a courtroom. This would give you the freedom to take control of the discussion and contribute as you wish. In mediation, lawyers are present during discussions so if you would prefer to have someone advocate for you throughout the process, this option is still available. 

  1. Certainty of the Outcome

There is much uncertainty involved in disputing a will through the courts. It is impossible to know for certain what the judge will decide until the hearing is over. However, through mediation, a settlement can be reached that has to be agreed on by both parties before it becomes official. This provides an added degree of certainty because you will know what you are agreeing to, whereas through the courts, the outcome is unknown before the binding judgement.

  1. Flexibility of Possible Solutions

As with taxation, a judge’s options for the overall outcome of the dispute are rigid. Disputing a will through the courts can therefore impose limited outcomes on your claim. For example, it is not possible for a judge to rule that only part of the will is invalid: they might invalidate the entire will, even the sections you agree with.

Mediation, on the other hand, provides wider possibilities for ways to settle the dispute. Negotiating can lead to a more satisfactory outcome that adds specific provisions that a judge would be unable to enforce. The flexibility of mediation can allow for a better outcome, tailored for the specific facts of your situation.

  1. Less Stressful than a Court Hearing

Finally, a will dispute can be a stressful process. One reason for this stress is that disputing a will can create tension in families. This leads to the emotional strain of potentially engaging in a court case against one’s family. Mediation is a way to resolve a conflict without having to present contentious arguments in a courtroom. This also poses a valuable opportunity to mend family relationships and avoid further conflict.

Furthermore, court cases over will disputes have been known to last for months and occasionally years. This is especially relevant when cases are appealed to higher courts. Choosing mediation makes it much more possible to resolve a will dispute in a short time frame. In fact, mediations can take as little as one day to arrive at a settlement.

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rules of intestacy in will disputes

When a Successful Will Dispute Means the Rules of Intestacy Matter

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When challenging a will, claimants should consider what outcome would result in the event that the will is declared invalid. If the courts declare the only will of a deceased person invalid, the estate will be distributed according to the rules of intestacy. It is important when contesting a will, to be mindful of how these rules would distribute the property if the claim is successful, and specifically, whether they would produce a desirable outcome. In England and Wales, the rules of intestacy are as follows:

Married Couples and Civil Partners

If the deceased person was married or in a civil partnership, then the surviving partner will inherit under the intestacy rules. If their estate was worth £250,000 or less, the value of the estate will all be left to their spouse or civil partner. However, if their property is worth more than £250,000, the first £250,000 will be left to the surviving partner (as well as all of the deceased person’s possessions), half of the remainder will go to the partner, and the other half will be divided equally between their children or direct descendants.

When a married couple co-own a property, it might be left directly to the surviving partner. Joint ownership can take the form of either tenancy in common or a beneficial joint tenancy. If the couple were beneficial joint tenants, then the surviving partner will inherit the property, and this will not form part of the £250,000 limitation. However, if they are tenants in common, the surviving partner will not automatically inherit the property and the first £250,000 of the estate will include the value, or part of the value of the property.

This means that if a married couple are beneficial joint tenants of a property worth £500,000, the surviving partner will inherit the house. Any additional wealth will be left to the surviving partner, up to £250,000 and any remainder will be divided between the partner and the children of the deceased.

Children and Direct Descendants

If the deceased person had no spouse or civil partner, the estate will be divided equally between the children. If the deceased person had children and grandchildren, then only the children will inherit. If one of the children has died, then the grandchildren from that child will inherit their deceased parent’s share of the estate. Money will not be directly left to grandchildren or great grandchildren under the intestacy rules unless their parent (and for great grandchildren, their grandparent) related to the deceased person, died first.

Other Relatives

If there is no spouse or civil partner, and no children or direct descendants, the rules of intestacy say that the estate will be divided equally between the deceased person’s parents. If there are no surviving parents, the estate will be divided equally between the deceased person’s siblings. Like the rule for grandchildren, any nieces or nephews will only inherit if their parent related to the deceased has also passed away. In the absence of any siblings, the intestacy rules will benefit half siblings of the deceased, and if there are deceased half siblings, then their children will benefit in their place as nieces or nephews.

Grandparents will benefit in the absence of all the above family members. Aunts or uncles will inherit if there are no surviving grandparents. The children of aunts or uncles (the cousins of the deceased) will only benefit if the aunt or uncle related to the deceased has died. Half aunts or half uncles would benefit if there were no aunts or uncles and their children would similarly benefit if the half aunts or uncles were deceased.

People who Cannot Benefit Under the Intestacy Rules

Those who cannot inherit through intestacy rules include:

  • Friends
  • Partners who are not married or in civil partnership
  • People who are related to the deceased through marriage

It is possible for the above types of individuals to be successful at contesting a will, only to find that the intestacy rules do not benefit them. In a will dispute where there is no previous valid will, it is therefore important to understand the consequences of the intestacy rules that will be applied if the will is declared invalid.

If the Deceased Person Had No Living Relatives

If there are no relatives of the deceased person, then under the intestacy rules, the estate will pass to the Crown.

Conclusions

In the event that a claimant in a will dispute is successful, that is, the judge declares the will invalid, it is possible that the rules of intestacy will divide the estate in an undesirable way. A family member could successfully contest a will, only to discover that the intestacy rules benefit another of the deceased person’s relatives instead. Claimants challenging a will should be aware of the above intestacy rules, to avoid the situation where they gain nothing from the invalidation of the will, and additionally have to pay a large legal bill for the will dispute.

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undue influence claim

Proving an Undue Influence claim – is it the ‘only’ reason?

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In the case of Wharton v Bancroft (2011) EWHC (Ch) 3250, a deceased man’s daughters disputed their father’s will, on grounds including undue influence, lack of capacity and want of knowledge and approval. This case highlights the difficulty of proving an undue influence claim, as well as the potential consequences for losing a will dispute.

The Facts of Wharton v Bancroft

Mr Wharton knew he had terminal cancer. He had a partner of 32 years, Maureen Wharton. In 2008, upon the realisation that he was going to die soon, Mr Wharton decided to marry Maureen. He changed his will to leave his entire estate to Maureen, and subsequently married her.

Mr Wharton had three daughters: two from his first marriage and one from another relationship. He had a strained relationship with all of his daughters, often falling out of contact with them for years at a time. In the 2008 will, he left none of his estate to his three daughters, because he felt that they were “adequately provided for”. A wealthy man, Mr Wharton was the owner of a 99% stake hold in White Horse, a leisure company with caravan parks and other assets. The company was valued for probate purposes at £4 million.

Mr Wharton passed away three days after making the new will and marrying Maureen. His daughters challenged the will on the basis of an undue influence claim, that Maureen’s behaviour influenced how the will was drafted.

Reasoning of the Judgment

The judge, Mr Justice Norris, referred to the cases of Edwards v Edwards [2007] WTLR 1387 and Cowderoy v Cranfield [2011] EWHC 1616, to invoke the principle that when making an undue influence claim, the burden of proof lies with the claimant to prove that there is sufficient reason to suspect that undue influence might have taken place.  Also, whether there is “coercion”, or mere “persuasion”, depends on whether the testator has physical and mental strength, or conversely, vulnerability to being coerced. He continued, “an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis”. This is a high standard of proof. The judge decided,

“The fact that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken.”

It was not enough, therefore, for the daughters to prove that Mr Wharton was potentially vulnerable to being coerced; the judge would have to find that there was no other reasonable possibility than that Maureen had coerced Mr Wharton into signing the 2008 will.

The judge “unhesitatingly” held that the 2008 will was the valid last will of Mr Wharton. He stated that Maureen had been Mr Wharton’s partner for 32 years and that Mr Wharton had made the decision of his own volition to marry Maureen in his final days.

The “Golden Rule” in an undue influence claim

The case of Kenwood v Adams [1975] CLY 3591 established the “Golden Rule” that a deathbed will should be witnessed by a medical professional. This would reduce the risk of the testator being vulnerable to coercion. The judge in Wharton v Bancroft decided that criticism of the solicitor for not having ensured that a doctor was present at the signing of Mr Wharton’s will was “misplaced”. He continued:

“A solicitor… cannot simply conjure up a medical attendant… I certainly do not think that “the Golden Rule” has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.”

Therefore, while solicitors are encouraged, if possible, to bring a medical professional to the signing of a deathbed will, it is not a legal requirement in every case. In Wharton v Bancroft, the fact that the solicitor chose not to follow the Golden Rule was not enough to establish Wharton’s vulnerability to coercion.

Conclusions

Nearly 40 witnesses gave evidence throughout the hearing in Wharton v Bancroft. Having made the claim against the will under several grounds, and ensured that the trial would be exceedingly expensive by calling so many witnesses, Mr Wharton’s daughters found themselves at great loss as a result of their will dispute. The total of their own legal fees as well as Maureen Wharton’s fees, which they were subsequently ordered to pay, was close to £1 million.

Undue influence is difficult to prove. It is important when challenging a will for undue influence, to be certain that there is evidence, not only that the testator was potentially vulnerable to coercion, but also that coercion has taken place. Claimants might consider focusing on the undue influence, instead of making several different weak claims. This would mitigate the possibility of having to pay an enormous legal bill for an unsuccessful claim.

If you are considering an undue influence claim, it is important to take specialist legal advice from a solicitor specialising in this area of law. We offer an initial claim assessment for free. This will help you identify the issues and decide whether to take the matter further. Should you instruct us to bring your undue influence claim, we can usually do so on a ‘no win no fee‘ basis.

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contesting wills

Contesting Wills: Five Things to Consider

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Contesting wills is never something to be undertaken lightly. Consider these 5 issues before you decide what to do – and consider taking professional legal advice about your situation.

  1. Will you challenge the validity of the will, or just ask for reasonable financial provision?

 Challenging the validity of a will can be done on the following grounds:

  • When the will does not meet the requirements set out in the Wills Act 1837, that is, validly signed and witnessed
  • When the testator (the deceased person who wrote the will) did not know and approve of the provisions in their will
  • When the testator was under “undue influence or coercion” while making their will
  • When the testator did not have “mental capacity” when making their will

In one of the above situations, it is possible to contest the validity of the will itself.

Alternatively, a beneficiary can make a claim against a will under the Inheritance (Provision for Family and Dependants) Act 1975 without bringing the validity of the will into question. Such a claim would be made on the basis that the will does not leave reasonable financial provision for family members, children, or other people who were financially dependant on the deceased person. 

  1. What evidence do you have?

When contesting a will on the basis that the testator did not have mental capacity to write the will, or that they made the will while under undue influence, it might be necessary to provide evidence to support a claim. Examples of evidence include:

  • Witness statements: it would be useful to have witness statements from individuals who knew the testator or were present when the will was made to support an argument that it was done under undue influence or without mental capacity
  • Diaries or letters: other documents such as diaries or letters might serve as evidence of the testator’s circumstances or state of mind when the will was made can be helpful when contesting wills
  • Medical notes: If a claim is based on lack of mental capacity, it would be useful to have medical notes to explain any medical conditions suffered by the testator that could have influenced their mental capacity when the will was made.
  1. Have you considered mediation to solve the will dispute?

 Mediation is a way of finding a compromise to settle a will dispute without taking the issue to Court. Unlike in other legal disputes, mediation is not required for contentious probate matters. However, this approach can be beneficial. Some key benefits of mediation include:

  • An opportunity to repair family relationships: will disputes can cause families to fall out and finding a solution or compromise through mediation might resolve these issues
  • Costs: Mediation is less expensive than going to trial
  • Time Efficiency: Going to court can take a lot of time, so mediation is a way to avoid a potentially lengthy and stressful experience when contesting wills
  • Certainty: A court will rule in favour or one party or the other and it is impossible to know for sure what the outcome of a will dispute hearing will be before the hearing. Mediation leads to an agreed outcome and is therefore less uncertain than going to Court. 
  1. Costs

Contesting wills is a process that can be expensive, because of the need to pay for solicitors and barristers to prepare the case and represent you in court. Therefore, it might be appropriate to consider a no-win-no-fee arrangement. In this type of arrangement, you will not need to pay legal fees unless you win. This mitigates the risk of having to pay an expensive legal bill at the end of an unsuccessful will dispute, and prevents you from having to pay up-front. If a no-win-no-fee claim is successful, your legal fees will be paid out of the testator’s estate, or out of any money you claim as a result of the ruling. 

  1. How long does contesting wills take?

Under the Inheritance (Provision for Family and Dependants) Act 1975, claims have a six-month time limit, whereas claims against the validity of a will have no time limit. However, such cases can be more difficult to establish if the testator has long since passed away, because over time it becomes more difficult to gather evidence. Some will disputes take years to be fully resolved. It is also possible for will disputes to be appealed to higher courts and this will draw out the process further.

Mediation is an option that might speed up the process of resolving a contentious probate dispute because it is possible to negotiate and reach an agreed settlement without having to wait for court dates.

If you’re considering contesting a will, get in touch. We are experienced will dispute solicitors and can handle most cases on a no win no fee basis. 

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We look at whether an inheritance act claim survives the death of a claimant

Does An Inheritance Act Claim Die with the Claimant?

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The Inheritance (Provision for Family and Dependants) Act 1975 allows individuals challenging a will to apply to the courts for inheritance beyond that stated in the will. Although English law recognises the principle that people should be free to leave their property as they wish, the Inheritance Act recognises that family and dependants should be left with reasonable financial provision after the testator dies. A claim under the Inheritance Act does not question the validity of the will itself.

The Case of Roberts & Anor v Fresco

 In the case of Roberts & Anor v Fresco [2017] EWHC 283 (Ch), the court was asked to answer the question: can a claim contesting a will under s1(1) of the Inheritance Act 1975 be made on behalf of a deceased claimant?

The facts of Roberts v Fresco

Mrs Milbour died in January 2014. Her estate was worth more than £16 million. This money was all left to the defendant, Mrs Milbour’s only child. Mr Milbour, the deceased’s husband, only inherited an income from his wife of £150,000.

Mr Milbour passed away in October 2014 only 9 months after his wife. Given the size of his wife’s estate, he might have had strong grounds for a will dispute due to a lack of reasonable financial provision in the circumstances. However, Mr Milbour did not make a claim for reasonable financial provision under s1(1) of the 1975 Inheritance Act during his lifetime.

As a result of Mr Milbour’s relatively small inheritance from his late wife, there was only £320,000 in Mr Milbour’s estate that was left to his daughter (the first claimant) and granddaughter (the second claimant) after his death. The court was asked whether it was possible for such a claim contesting a will to be made on Mr Milbour’s behalf after he had passed away. This would then determine whether his estate should be amended to include more inheritance from his wife, and therefore leave a larger inheritance to his daughter and grandchild.

Can a claim be brought under the Inheritance Act on behalf of a deceased individual?

In the will dispute cases of Whytte v Ticehurst [1986] Fam 64, and Re Bramwell (deceased) [1988] 2 FLR 263, the courts decided that a will dispute in the form of an Inheritance Act claim would be unenforceable once the claimant dies. Thus, there is a rule that to make a claim under the Inheritance Act 1975, the claimant must still be alive.

In the Roberts & Anor v Fresco [2017] EWHC 283 (Ch), the judge Mr S Monty QC said in paragraph 49 of his judgement,  “both Whytte and Bramwell remain good law.  I am not bound to follow these decisions as they are decisions of a court of equivalent jurisdiction.  But in my view, they were correctly decided.” Therefore, this legal principle has been upheld, and when challenging a will under the Inheritance Act 1975, an unresolved claim will die with the claimant.

Furthermore, in paragraph 45 of the judgement Mr S Monty QC stated, “Unless the applicant brings the claim and obtains an order, it remains a hope or contingency”. Therefore, a will dispute under the Inheritance Act 1975 will die with the claimant unless they have already successfully obtained an order from the courts before their death. The application to adjust the estate under the Inheritance Act 1975 on behalf of Mr Milbour therefore failed because he had passed away before bringing a successful claim.

Was there another remedy under the Inheritance Act?

In the case of Roberts & Anor v Fresco, the court was also asked about a potential new claim brought about by Mr Milbour’s daughter under S2(1)(f) of the Inheritance Act 1975. This claim was made on the basis that she was in effect, a child of the marriage between her father and Mrs Milbour. This would lead to an adjustment of the settlement of the former matrimonial home, which was worth about £9 million. The judge found that contesting a will under the Inheritance Act on behalf of a deceased claimant is not enforceable. However, the judge allowed this new separate claim, so Mr Milbour’s daughter might still benefit from Mrs Milbour’s estate through her family relationships with her late father and stepmother.

As experienced will dispute solicitors, we can offer you advice on the right way to approach your dispute, and achieve the best outcome for you and your family. We can usually act on a no win no fee basis too, meaning legal fees will be more manageable. If you would like to discuss your will dispute, get in touch for a free claim assessment.

 

 

 

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challenging a will may be the only way to achieve justice

Things to know before challenging a will!

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Challenging a will can be a daunting undertaking. In this blog we’ve put together some useful information that can help you understand more about what it means.

A ‘will’ is an important legal document

A will is a legal document which is made by an individual before his or her death. It states how their property, including money, any property or land they own, and anything else, should be left upon their death. The individual making a will is known as the Testator. Those benefiting from a will are known as Beneficiaries. Wills are the easiest and most reliable way of dealing with your personal assets and chattels after death. However, problems can arise when one or more individuals are not content with how property has been divided up in a will. When an individual who is either connected to the will or not is unhappy with the division of the estate, he or she can ‘contest’ or ‘challenge’ it.

There are 2 main ways to challenge a will

A beneficiary can either challenge the validity of a will, or how property is divided up in a will.

Challenging the validity of a will

A claim challenging a will because it is not valid means that you will be arguing that the will should be ignored and property and the estate should be divided up according to a previous will – or if there is no previous will, then the rules of intestacy.

To do this, there must be evidence of one of a number of things:

  • The will was not correctly executed
  • The deceased lacked capacity to make a will
  • The deceased lacked knowledge and approval of the will
  • The deceased was unduly influenced or fraud has taken place
  1. Lack of testamentary capacity

The test in Banks v Goodfellow states that a person making a will must understand that they are making a will and the effect of it. Secondly, they must know the nature and value of their estate. Thirdly, they must understand the consequences of including and excluding certain people under their will. Lastly, they must not be suffering from any ‘disorder of the mind’ which may influence their views.

  1. Lack of valid execution

This is also known an invalidly created/executed will. A will is invalid if it fails to meet the requirements of s9 of the Wills Act 1837:

  • The will must be in writing and signed by the testator
  • The intention of the testator must be to give effect to the will by signing it
  • The will must be signed in the presence of at least two witnesses, who must attest and sign the will in the presence of the testator

The aforementioned witnesses must be ‘disinterested’ individuals. This meaning that they must not benefit from the will in any way.

  1. Lack of knowledge and approval of the will

The individual must know that they are signing the will and are aware of the contents of the will.

  1. Undue influence

It must be shown that the testator was subject to ‘actual undue influence’. The evidential requirement for this is high and there must be no other reason to explain the terms of the will.

Challenging the contents of a will

To challenge the contents of a will, you can use the Inheritance (Provisions for Family and Dependants) Act 1975. Although a Testator is usually free to leave his or her property as he likes, in some circumstances, the courts will step in and redistribute the assets left in the will.

To do this, you have to have a close connection with the Testator and if not either married/civil partnered or a child of the deceased, will need to have been living with him or her or ‘maintained’ by him.

Challenging a will can be a lengthy process

As with any legal procedure, challenging a will can be a lengthy process. Disputes can go on for many years. It may be possible to resolve matters more quickly through negotiation or mediation, which can offer a number of benefits in addition to a quicker resolution. Mediation can be cheaper than going to court. It can also offer more flexible solutions agreed between you and the other side.

It won’t always be clear what the outcome will be

If you succeed in challenging the validity of a will, the result will be that the will is declared invalid and the estate has to be distributed according to the last valid will. If there is no earlier will, the estate is distributed according to the rules of intestacy. It will be worth exploring what these options will mean before commencing a will dispute – you could end up in a worse position than you were under the will you are challenging.

If you challenge the contents of a will using the Inheritance Act 1975, and succeed, the court will have to consider what would be a reasonable amount for you to receive. This will depend on whether you were married or civil partnered to the Testator, or had some other connection to the Testator. Spouses/civil partners can be awarded what is reasonable ‘in all the circumstances’, while other successful challengers will receive what is reasonable ‘for their maintenance’.

Challenging a will can be expensive

The legal costs of challenging a will are not to be underestimated – and not only in terms of money, but time too. You must be completely sure you have enough evidence to back up your claim, and the process for achieving this is timely, expensive and potentially detrimental to your own emotional well-being and stability. You must be sure that the contest is worth the potentially negative consequences attached to the process.

On the other hand, you may be able to fund the challenge through a no win no fee agreement, and look to resolve things through mediation rather than going to court. Considering both these options can make the process far more achievable, and less daunting, especially if you choose a specialist firm of solicitors, experienced in will contests.

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chess executor and beneficiary conflict of interest

Recognising a Conflict When a Beneficiary is Also an Executor

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Can someone be both executor of a will and a beneficiary under the will? This is quite common – but what if there is a conflict of interest?

Beneficiaries and executors

A beneficiary of a will is a person named in the will as someone who will inherit money or property, or benefit from a trust. An executor of a will is the person named in the will who is responsible for arranging the allocation of a deceased person’s property and carrying out their wishes. An individual can be both a beneficiary and an executor for the same will. However, it is possible for the courts to remove an executor, if a conflict of interest arises from a will dispute.

What powers do the courts have to remove an executor of a will?

Usually, the court will make a decision to remove an executor of a will when the executor is at fault through their actions.  The Administration of Justice Act 1985 (s50) gives judges the power to remove an executor where they see fit, and a wide discretion to do so.

In the recent High Court case of Heath v Heath, Timothy Heath, an executor and beneficiary of his mother’s estate, was removed as executor because he had raised a dispute to contest the will. The court’s decision to remove him as an executor was unusual, because Timothy was not at fault through his actions. However, the court thought that there was a conflict of interest: Timothy was in charge of dividing up property according to a will with which he disagreed, in respect of his own inheritance.

The case of Heath v Heath

Three brothers, Dominic, Jeremy and Timothy Heath, were beneficiaries in their mother, Rachel Heath’s will for one third each of her estimated £1.8 million estate. As well as beneficiaries, the brothers were all named as executors of the will. Dominic and Jeremy Heath had both left the family home and achieved successful careers in medicine. Timothy was a qualified barrister but did not pursue a career; he continued to live in his mother’s house for over 50 years and cared for her when she suffered from dementia.

Timothy stated, “I have been looking after mother for many years, a difficult person to look after. I was her principal carer for many years.” Two paid live-in carers had also worked at the house, but Timothy argued that he had done a third of the work of caring for his mother, unpaid. He also argued that his brother Jeremy visited their mother twice a year, and Dominic once a month for about an hour. The will splitting the estate into thirds was written in 1971, long before his mother became ill. His brothers were both wealthy due to their careers in medicine, whereas Timothy was not employed. Timothy challenged the will on the grounds that he was deserving of more than one third of the estate.

The Removal of Timothy Heath as Executor

Dominic Heath argued that his children should benefit from their grandmother’s estate and Timothy was preventing this by refusing to fulfil his duties. As an executor, Timothy Heath was responsible for dividing the estate into thirds for himself and his brothers according to the 1971 will. However, Timothy had argued in court that he should be entitled to more than the one third of the estate that was allocated to him in the will.

Dominic and Jeremy Heath made a claim against Timothy to have him removed as one of the executors. The judge, Mr Justice Carr ruled in their favour, removing Timothy as an executor of the will. Timothy was replaced by in independent solicitor. Dominic and Jeremy were ordered to pay their own costs of £25,000 for making the application to remove Timothy (rather than removing this money from the estate). Mr Justice Carr warned Dominic and Jeremy that they might also be removed as executors should further conflicts arise. Timothy Heath’s will dispute is on going.

What this means for an executor who is challenging a will

It is possible for someone who is both an executor and a beneficiary to contest a will. However, the case of Heath v Heath shows that someone can be removed as executor if there is a conflict of interest.  Such a conflict may arise, if like Timothy Heath, the individual challenges the allocation of property, which he or she is responsible for distributing.

If you are the executor of a will that you also benefit from – or think you should benefit from, and are considering whether to challenge the will, get in touch with us!

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don't miss the time limit on Inheritance Act claims

Don’t Delay Bringing Inheritance Act Claims

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The Inheritance (Provisions for Family and Dependants) Act allows the dependants of a deceased person to make claims for reasonable financial provision beyond that which they have been left in the will. Inheritance Act claims don’t question the validity of the will itself. The Inheritance Act specifically aims to help individuals who were dependent on the deceased person before they passed away, such as children, spouses and other financial dependants. It is important to bring Inheritance Act claims promptly. The recent case of Sargeant v Sargeant & Anor [2018] EWHC 8 (Ch), has shown the consequences of failing to bring a claim in time, even when the grounds for contesting a will under the Inheritance Act are strong.

What are the time limits for making Inheritance Act claims?

 The time limit for bringing Inheritance Act claims is six months after the grant of representation with respect to the estate of the deceased. In other words, once the deceased person’s representative has been confirmed, any dependant who believes they were not properly financially provided for by the will has six months to make a claim under the Inheritance Act.

 What is the benefit of bringing a claim promptly?

According to the Inheritance Act, a court can choose to extend the deadline at their discretion. They will consider

  • whether the dependant made the claim promptly,
  • reasons for any delays and
  • the strength of the defendant’s claim.

Even though it is possible for the courts to allow a will dispute case that has been made outside the time limits set out in the Inheritance Act, it is important to seek legal advice and make such a claim as soon as possible. This will prevent the possibility of missing an opportunity to contest a will that fails to provide reasonable financial provision.

What happens if Inheritance Act claims are made after the time limits?

In the case of Berger v Berger [2013] EWCA Civ 1305, a wife was prevented from claiming financial provisions under the Inheritance Act because her claim was made six years after the death of her husband, and was therefore well outside the time limits, and because the judge deemed that her grounds for contesting the will were not strong enough. However, the more recent case of Sargeant v Sargeant & Anor [2018] EWHC 8 (Ch) has shown that challenging a will can fail because of undue delay, even when the claimant has strong grounds for contesting a will under the Inheritance Act.

In Sargeant v Sargeant & Anor, Jon Sargeant had set up a trust in his will for Mary and Jane (his wife and daughter), and for his grandchildren. The trust was discretionary, i.e managed by one or more trustees who could decide how much money to pay each beneficiary from the trust and when to pay.

The trust was set up with Mary, Jane and Jane’s children (Jon’s grandchildren) as beneficiaries. There was no dispute immediately after Jon’s death, but subsequently the value of the farmland within the trust property increased to £8 million. Mary was in financial difficulty after Jon passed away. Long after the six-month time limits, a dispute arose about the arrangements for the trust with regards to Mary’s financial position. Mary, as a discretionary beneficiary, was paid in accordance with the trustees’ discretion, and made a claim under the Inheritance Act to increase the amount of money she was receiving from the trust in the hope of achieving a reasonable level of financial provision.

The court considered factors including Mary’s knowledge that she was already in financial difficulty throughout the ten years between her husband’s death and her claim under the Inheritance Act, and the fact that she did not make an attempt to find information on how to challenge a will during this time. The court decided not to extend the time limits under the Inheritance Act, and Mary Sargeant’s claim failed.

Mary Sargeant would have had a strong claim under the Inheritance Act due to the uncertainty of a discretionary trust: as the trustees can decide whether to provide for her, there is no guarantee that Mary will receive an income from the trust.  Regardless of its merits, Mary’s claim was denied for being made outside the time limits. It is therefore essential to make Inheritance Act claims as soon as possible to maximise the possibility of a successful claim.

Taking early legal advice is vital to make sure you bring your Inheritance Act claim within the time limits specified. Talk to us about your will dispute and we’ll make sure you get your claim in on time!

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old couple capacity to marry

Capacity to marry – what about making a will?

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In the recent case of DMM, Re (2017) EWCOP 33 the court had to decide if someone had the capacity to marry and revoke a will.

When creating a will there are many issues that come into play. Alongside the statutory requirements in Section 9 of the Wills Act 1837, there are three main requirements for the formation of a valid will. These are: the testator must have testamentary capacity, the will must be executed free of fraud, undue influence, mistake or duress and lastly the will must have been executed properly.

Possessing the capacity to create a will in the first place remains a central issue. Testamentary capacity can be affected by a number of things, for example: age, mental state and possible exterior coercion.

The facts in DMM, Re (2017)

The case concerned an elderly man, suffering from dementia, who wished to marry his partner of nearly 20 years. His daughters wished to stop this happening amid fears that they would lose out on their inheritance. The will, drawn up in 2013, divided his assets, including a £1.5m house and £120,000 in cash, between his three daughters. The will gave his partner two thirds of his pension, a legacy of £300,000 and the right to stay in the house for two years after his death.

S.18 Wills Act states that an existing will is revoked by a marriage unless an exception applies. If the proposed marriage went ahead, the man’s existing will would be revoked and his new wife would become the primary beneficiary of the estate unless the man made a new will replicating the provisions of the previous will. It appeared that the man was not minded to do this, and the daughters were concerned that they would lose out. This prompted them to apply to the courts for a declaration that their father did not have capacity to marry or to create a new will due to his Alzheimer’s condition.

Capacity to make a will?

The case of Banks v Goodfellow is the leading authority. The three-part test establishes when a testator has capacity to make a will. In regard to this case, the court was instructed to hear from an impartial, distinguished doctor, Dr Series, who assessed the individual’s capacity to marry and create a will. In his report Dr Series concluded that the testator did indeed have the capacity to marry as he “understood the potential consequences of his marriage” and realised that “his daughters might receive less than before” should he subsequently die. One daughter contested this finding and insisted on more testator interviews to be conducted in “rigorous conditions”. This was rejected by the court.

The decision on capacity to marry

The court held that the testator did indeed have the capacity to marry and revoke his will which would in turn leave his daughters in a worse off position financially.

Judge Nicholas R Marston also held that the testator’s fiancée had not exerted undue influence and that Dr Series findings were to be upheld.

The testator’s daughters had no means of contesting the will under the guise of testamentary capacity. Furthermore the testator’s fiancée was exempt from any finding of undue influence on the testator.

Future wills?

In regard to any will the testator makes after marriage, the position of his daughters and wife is slightly different. The daughters might contest the will under Inheritance (Provision for Family and Dependants Act) 1975 which is a vehicle used to seek a greater share of the inheritance without claiming that the will is invalid (and conversely so could his wife, if she believes she hasn’t been left enough). The wife, after the death of her husband, could make her own will (which deals with the estate she receives from her husband as well as her original assets), but if not, and she dies intestate, her assets including those from her deceased husband will pass to her nearest living blood relatives and not to her stepdaughters.

What can we take from this case?

The will dispute arising here is an interesting example of a common contentious probate issue, this being where the testator has the testamentary capacity to make a will. Interestingly, the daughters tried to address the issue of testamentary capacity before the testator had passed away, introducing the argument alongside the challenge to their father’s capacity to marry.

The finding in this case allowed the testator to marry his fiancée and revoke his previous will despite his Alzheimer’s condition. Testamentary capacity must always be assessed from a medical perspective and the judge reiterated in this case that at the heart of this issue is the mental capacity of the testator which must be handled carefully.

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survivorship clauses can cause confusion and unintended consequences if not properly drafted

When survivorship clauses can cause confusion!

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Sometimes, the problems that arise from a will aren’t about whether the person who made the will had the capacity to do so, or whether they were unduly influenced by someone else. Sometimes, the problems come from the way the will was drafted – and even properly drafted wills can cause problems in some circumstances. This happened in the case of Jump & Jones v Lister [2016] EWHC 2160 where the survivorship clauses in mirror wills caused problems when husband and wife died at the same time.

The facts in Jump & Jones v Lister

Mr and Mrs Winson, the uncle and aunt of the claimants in this case, were both found dead at their home. It was impossible to tell who had died first. They had left mirror wills which left everything to each other, but if that gift failed (because one of them had already died), then the wills

  • Made provision for the disposal of their personal property
  • Left legacies to the same named individuals and charities, amounting in total to £214,500
  • Left the residue to their nieces – the claimants.

Mr Winson was the younger of the deceased couple so the court applied the rule in section 184 of the Law of Property Act 1925, and presumed that he died after his wife. Mrs Winson’s will included a ‘survivorship clause’ which required any person to survive her by 28 days in order to inherit under her will. As a result, it was decided that

  • There was no ambiguity in the survivorship clause and no attempt to clarify that Mr Winson would be excluded from the survivorship clause
  • The rule of ‘commorientes’ in the Law of Property Act 1925 meant that Mr Winson was presumed to have died after Mrs Winson, but nevertheless, he had not survived for 28 days after his wife’s death
  • The legacies were therefore paid out twice – once under Mrs Winson’s will, and then under Mr Winson’s will.

Survivorship clauses

Survivorship clauses are common in wills. As in this case, they will usually require the beneficiaries under a will to survive for a specific ‘survivorship’ period after the testator (the person who made the will) has died. If the beneficiary does die before the end of the period, he or she is treated as having predeceased the testator, so the inheritance is distributed accordingly. Including a survivorship clause in your will means you can avoid the situation where assets go through probate more than once in a relatively short space of time.  It also allows you to maintain a degree of control over how your estate is distributed onwards after your death. If your property passes to someone who then also dies quickly afterwards, your property is then essentially distributed onwards according to that beneficiary’s will (or their intestacy).

Obviously, survivorship clauses cannot prevent assets eventually being dispersed onwards, but they can restrict onward distribution in the initial period following a testator’s death. The problem in this case was that because the couple died at the same time, and certainly within 28 days of each other, the survivorship clause was not satisfied. Mrs Winson was deemed to die first, and because her husband did not survive her by 28 days, he was treated as having died before her. This meant that the clauses relating to personal property, the gifts to individuals and charities all applied. Then, when dealing with Mr Winson’s will, the same situation arose – although this time because Mrs Winson had actually pre-deceased her husband (at least for these purposes). The result was a double inheritance for the individuals and charities in receipt of specific legacies.

The legal case here was brought by the nieces/executrices who argued that this was the case – and the pecuniary legacies should, on the proper construction of the will, be paid twice. The defendant solicitors, who had drafted the wills, argued that the survivorship clause should not have applied, with the result that the pecuniary legacies should only have been paid once.

Take care drafting your wills!

Although here at Willclaim Solicitors we do not draft wills, we often see the results of poor drafting, or the fall out from when a will has been drafted without proper care to what is going on at the time. The consequences of a will dispute can be long lasting, so we would always advise taking proper legal advice when drafting your will to avoid heartache for your family, friends and other beneficiaries. If you find that you are concerned about the contents of a will – either because of how it has been drafted, or because you think something untoward has happened in the preparation of the will, get in touch. We are experts in will disputes and will be able to advise you on your position.

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

The importance of pre-action disclosure when you challenge a will

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If you have been disappointed with the contents of a will – perhaps you have been inexplicably left out of the will of a loved one or close relative, or you have been left less than you understood you would receive – it is important to make an application for pre-action disclosure as early as possible.

Why are documents important in a will dispute?

One of the key difficulties in a will dispute is that the person who made the will is, by definition, unable to give evidence about why he the will in the way he did. Other people who were close to the testator may be able to give evidence – and almost certainly will be asked to do so. However, documents can also be a very important factor in determining what was going on at the time the will was made

What is pre-action disclosure in a will dispute?

Pre-action disclosure is a process for obtaining documents from the other side in a dispute. If you are thinking of contesting a will, this might be the executors of the will, other beneficiaries, or the solicitors who drew up the will. Many types of litigation have specific pre-action protocols which cover matters such as disclosure of documents. There is no such official protocol for will disputes. However, ACTAPS, the professional body which governs this type of litigation, has drawn up its own code which includes early disclosure of documents.

Why is it important to receive these documents and evidence early?

Litigation is an expensive and stressful business – particularly so if you are trying to cope with the death of a loved one at the same time. By accessing all the relevant documents early on, having sight of the will and being able to examine medical and other records early, you and your solicitor can make a decision about whether you have a claim, and, even if you have a claim, whether the results of winning the litigation would make pursuing the case worthwhile – sometimes, it may not be worth it. This could be because the result would mean that the estate would be distributed according to the rules of intestacy, or under a previous will, and you might receive nothing. Making these decisions early reduces uncertainty about what to do next.

Who will organise pre-action disclosure?

You may have already asked to see documents if you have been upset by the contents of a will. Even if you have done this, pre-action disclosure is usually something your will claim solicitor will organise. Most often, the request for documents will be made in a letter to the solicitors acting for the other side in the dispute.

What kind of documents might be revealed through pre-action disclosure?

The documents you can expect to obtain through pre-action disclosure will vary depending on the type of challenge you are considering, but they might include:

  • The will itself, if you haven’t already got a copy
  • Medical records
  • Bank statements
  • Letters
  • Solicitors’ files from the time the will was drafted
  • Social security records
  • Social services notes

There may be other important documents – your solicitor will talk to you about the reasons you feel you have a claim, and from there, establish whether there might be other documents that could be helpful.

Pre-action disclosure and no win no fee arrangements

If you are worried about legal fees, you may have entered into a no win no fee arrangement to cover the legal costs of the will dispute. By obtaining documents through pre-action disclosure, you can make a better decision about the strength of your case and whether to continue under the no win no fee arrangement.

As will claim specialists, we follow the ACTAPS code and will always seek pre-action disclosure at an early stage in any will dispute. To find out more – or to kick off a free claim assessment, get in touch.

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A no win no fee arrangement can be a great way to handle legal costs in a will claim

The benefits of a no win no fee agreement in a will dispute

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When you are thinking about any kind of legal action, a key concern will be the legal costs involved. It is no different when you are planning to challenge a will. It is a complex area of law, and you will need specialist legal advice and support to help you navigate the process, and succeed in your will claim. A no win no fee arrangement offers a sensible approach to funding your will dispute.

What is a no win no fee arrangement?

A ‘no win no fee’ arrangement is just that. It’s an agreement that you enter into with your solicitor that says that if you don’t win your case, you don’t have to pay your solicitor their legal fees. Of course, if you do win, you will have to pay your solicitor – but you will have won your case at that stage, so you will be better placed to have the legal fees.

How can a no win no fee arrangement help?

Primarily, a no win no fee arrangement helps you because you don’t have to worry about legal fees at a time when you will already be upset and vulnerable. You can consult your solicitor, receive advice about the strength of your claim and find out about the process and what will be involved, without the wondering whether you will be able to afford it.

What about initial advice?

You may take initial advice about your will dispute and decide not to take it any further. Here at Willclaim, we offer an initial, free claim assessment which should give you enough information to decide whether you want to pursue the matter and challenge the will – or not.

Will I have to pay the legal fees from the inheritance?

Assuming you succeed in your will dispute, you will receive the inheritance, or at least a portion of it – that you were looking for. You will probably be reluctant to pay some of that over in legal fees – but the good news is that in many cases, if you succeed in your claim, we will be able to recover our legal costs from the other side, or from the estate itself. This isn’t always the case, though, and you may have to pay some of your newly received inheritance in legal fees. It is a consideration of any litigation whether the costs of the legal action will outweigh the benefits of succeeding in the claim.

Are there any alternatives to a no win no fee arrangement?

You can agree to pay your legal costs as they arise without entering into a no win no fee arrangement if you wish to do so. Another possibility is legal expenses insurance – which you may have as part of your household insurance. This won’t always cover this kind of legal dispute but it is worth checking. It is also possible to take out ‘After the Event’ insurance. The premium is only payable once costs are recovered, and if you don’t win your claim, you do not pay anything (as in ‘no win no fee’). However, as these policies cover the other side’s costs following court proceedings, there is often no need for ATE insurance as most will dispute claims are settled out of court and before proceedings are issued.

Will I be able to use a no win no fee arrangement?

We can offer a no win no fee arrangement in nearly all the will dispute cases we take on. Making applications to see documents that you may not have had a chance to look at – the will itself, medical evidence and other documentation, can help you decide whether to continue with the claim early on. We will apply for what is known as ‘pre-action disclosure’ from the other side, and with those documents available, we will advise you whether the claim is worth pursuing, and whether we can work under a no win no fee arrangement.

Taking the decision to challenge a will is a big step. We are experts in will disputes and offer a dedicated team of professionals to guide you through the process. A ‘no win no fee’ arrangement is one practical way we can support you through this difficult time.

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5 things to know about testamentary capacity

5 things to know about Testamentary Capacity

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If you want to challenge a will, you have 2 broad options open to you. The first is to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The second option is to challenge the validity of the will itself. There are several grounds to do this – one of those is to argue that the person who made the will, the Testator, did not have ‘testamentary capacity’. In this blog, we set out 5 things you need to know about testamentary capacity.

  1. The ability to make (or amend) a valid will

The term ‘testamentary capacity’ means the legal and mental ability of a person to make a valid will – or to validly amend a will. To have testamentary capacity, you must meet the requirements set out in the case of Banks v Goodfellow which are

  • You understand what making a will means and what the effects of making a will are.
  • You understand the extent of the property which will be covered by the will; and
  • You understand and appreciate the people who ‘should’ be included in the will (even if you decide not to leave anything to any or some of them), and are not “…affected by any disorder of the mind that influences his will in disposing of his property…”
  1. The solicitor drafting the will has a responsibility to check testamentary capacity

If there is any question during the will drafting process that the person making the will might not have testamentary capacity, the solicitor – or the person drafting the will – should follow what is know as ‘the Golden Rule’ and take steps to make sure that the testator does have capacity to make the will. This could include bringing in a doctor, ideally someone who knows the testator, or who has expertise in the area of capacity to consider whether the person making the will is able to do so.

  1. The Golden Rule itself won’t determine testamentary capacity

If you think someone did not have testamentary capacity when they made their will, the Golden Rule won’t determine the matter. Just because the will drafter did not follow the Golden Rule to confirm whether the individual did have capacity doesn’t mean that the will is automatically invalid. However, if the Golden Rule has been correctly followed, it will be strong evidence that the testator did have testamentary capacity.

  1. Proving someone did not have testamentary capacity can be difficult

As with many will disputes where the validity of the will is challenged, proving what was the situation at the time the will was made can be very tricky. You will be looking for evidence such as medical notes, and contemporary accounts of what the testator’s state of mind was at the time they made the will. This can be a challenge in some cases.

  1. Knowledge and approval often dovetails with testamentary capacity

‘Knowledge and approval’ is another basis for challenging the validity of a will. To succeed, you must be able to show that the testator did not know the contents of the will, or approve it. If a Testator has testamentary capacity, a challenge on the grounds of knowledge and approval is unlikely to succeed. On the other hand, if there are doubts about testamentary capacity, a challenge on the basis of knowledge and approval may succeed. Indeed, in the recent case of Hawes v Burgess, the Court of Appeal did not uphold the finding of lack of testamentary capacity, but still held that the will was invalid on grounds that the Testator lacked knowledge and approval of the contents of her will.

And finally…

If you are contemplating a challenge to the validity of a will, whether on grounds that the Testator lacked testamentary capacity, or for one of the other reasons, such as undue influence, you should always consider the ultimate consequences. In other words, what will happen if you are successful and the Will you are disputing is declared invalid? This is important, because if there is an earlier valid Will and you are not a beneficiary or where there is no previous valid Will, the rules of intestacy apply and again you are not a beneficiary, then you will not be able to pursue your claim in law. In other words, you cannot pursue a claim of this nature if you have no interest in the outcome of the dispute.

Talk to us if you’re considering a challenge to a will – as will dispute experts, we can talk you through the process and give you and idea of what to expect.

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Challenging wills using Fraudulent calumny

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A few months back, we looked at the issue of ‘fraudulent calumny’ – which is a kind of undue influence – and how it can be used to challenge a will. The recent case of Christodoulides v Marcou [2017] EWHC 2632 (Ch) is another opportunity to look at what fraudulent calumny involves.

The facts in Christodoulides v Marcou

This case involved a dispute between 2 sisters, Niki and Andre in relation to their mother’s will, made shortly before she died, and which left everything to Niki when her intention had always been to divide her estate between the sisters equally. Niki had joint control over her mother’s bank accounts for administrative convenience. In March 20120, 500,000 euros was transferred into an account in joint names of the mother and Andre. Following this action, which angered Niki greatly, the recorder found that Niki had made a series of representations to her mother designed to make her mother think badly of Andre. Niki also led the mother to believe that Andre had taken the 500,000 euros. As a result, the mother made a will a few days before she died leaving everything to Niki on the basis that it would even things out between the sisters

The decision – and application to appeal

The recorder decided that there had been a ‘fraudulent calumny’. He looked at the principles set out in Re Edwards, and considered that:

  1. Niki had made a false representation
  2. to her mother
  3. about Andre’s character
  4. knowing it to be untrue or being reckless as to its truth, and
  5. the Will was made only because of the fraudulent calumny.

On appeal, among other things, Niki argued that the recorder had not made a specific finding that what she was alleged to have done was “for the purpose of inducing [her mother] to alter [her] testamentary dispositions”.

The decision which refused Niki permission to appeal goes into some detail on this point. The judge agreed that the recorder had not made a specific finding of fact on the point of Niki’s purpose, but he felt that there was a very strong case that this was Niki’s purpose [para 49]. Going on, the judge explained that the recorder had not been asked to make a finding of fact on that point (despite him being given a list of 82 findings to make by the barristers involved in the case). On a technical matter, too, the judge said that this argument was only raised in court during the permission to appeal hearing, and had not been included in the written grounds of appeal.

Proving a will in solemn form

The case arose because Niki made an application to the court in the first place to have the will proved in solemn form. This is a procedure where the executor of a will can go to court for a declaration about the will before it is admitted to probate. Andre’s objection to the will was, of course, that it had come about through fraudulent calumny. In this case, the recorder found that fraudulent calumny was in play, and the will was invalid. As a result, the rules of intestacy applied. The judge who considered the application for leave to appeal did not think that there was any prospect of success for the appeal.

Evidence of fraudulent calumny

As with any claim that a will is invalid – whether because of undue influence, because of a lack of testamentary capacity, or lack of knowledge and approval, evidence is always problematic. The person who made the will is no longer available to give evidence. In this case, the recorder was able to make some very clear findings from the evidence about what had happened and Niki’s role in poisoning her mother’s mind against Andre.

If you’re concerned about the circumstances in which a will has been made, and think you have been left out of a will because someone else has persuaded the person making the will to do so, get in touch! We are specialist will dispute solicitors, and will talk you through your case and what a will dispute will involve. We can usually act on a no win no fee basis too, taking away some of the stress of legal fees.

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We look at the test for living in the same household for cohabitess under the Inheritance Act

Inheritance Act claims – Living in the same household

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In this blog, we look at what the requirement to be living in the same household as the deceased, in relation to Inheritance Act claims by cohabitees for  under the Inheritance Act 1975.

Cohabitees claiming under the Inheritance Act 1975

The Inheritance Act 1975 allows cohabitees – both opposite sex and same sex – to claim under the Inheritance Act 1975 if they have been left out of their partner’s will altogether, or have only been left a small amount. It also allows cohabitees to claim if there is no will. The laws of intestacy do not currently allow provision for a cohabitee, so a cohabitee left out of a will must rely on the Inheritance Act 1975. Section 1(1A) of the Inheritance Act allows

…a person … during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

(a)in the same household as the deceased, and

(b)as the husband or wife of the deceased.

to bring a claim. An identical provision in section (1)1B allows same sex cohabitees to bring the same claim.

Living in the same household

In the case of Re Dix, deceased 2004 EWCA Civ 139 , the Court of Appeal agreed that

  • The court didn’t need to restrict itself to the two-year period immediately preceding the death when considering nature of the couple’s relationship.
  • The “household” goes wider than simply living together. It includes the public and private acknowledgment of their mutual society, and the mutual protection and support that binds a couple together.
  • There is a difference between a couple living apart because of a breakdown of the relationship, and a couple living apart for some other, transitory reason, when the relationship continued.

In that case, Mrs Gully went to live with the deceased, Mr Dix in 1974. They lived together until 1999, when Mr Dix sustained head injuries and became unable to care for himself. His drinking caused him to threaten to self-harm in front of his partner. There followed a number of separations, and in August 2001, she again left temporarily, following another incident of threatened self-harm. Mr Dix was found dead at his home in October 2001. Mrs Gully had not gone back to live with him after she left in August. The question for the Court of Appeal was whether she could be said to have lived in his household for 2 years before Mr Dix died. The Court of Appeal upheld the decision of the original judge that Mrs Gully could be said to have been living in the household for the 2 years prior to Mr Dix’s death. The fact that she was not living in the same house did not mean she was not part of the ‘household’.

Dix applied in Kaur v Dhaliwal

In the case of Kaur v Dhaliwal [2014] EWHC 1991, the court applied the principles in Re Dix to slightly more complex facts. Mr Dhaliwal, the deceased, had met Miss Kaur in May 2005, shortly after his wife had committed suicide. They got engaged in June 2005. Mr Dhaliwal had been accused of manslaughter in relation to the suicide but acquitted in March 2006. The acquittal was upheld on appeal in May 2006.

Mr Dhaliwal was living with his sons in the family home at the time of the engagement, so the couple kept it secret, but Mr Dhaliwal would stay with Miss Kaur at her house, and Miss Kaur began to work in Mr Dhaliwal’s café, eventually working 7 days a week in the café. Although the intention was to keep the relationship secret, the sons found out, and strongly disapproved of the relationship.

In July 2006, the couple moved into a flat owned by Mr Dhaliwal, and lived there together until September 2006. In September 2006, Miss Kaur moved out of the flat. The couple spent 2 weeks together staying with a friend in May or June 2007, and then in July 2007, they moved in to another flat together and lived there as husband and wife until June 2009. The period they had lived together immediately before Mr Dhaliwal died amounted to 1 year and 49 weeks – so 3 weeks short of the 2 years demanded by section 1(1A).

The sons argued that the extent of the period that the couple had not lived in the same house – some 8 or 9 months – was too long to count as a temporary separation. The appealed the original decision which was remitted back to the original judge, He considered the facts again, and reached the same conclusion. The provisions of the Inheritance Act 1975 for ‘cohabitees’ go beyond simply living together for the 2 years period immediately before the death of one of them. The nature of the relationship during any physical separation is relevant. In this case, the couple had continued to work together, and had been together visiting a friend in May or June 2007.

Comment from our will dispute expert

Cohabiting couples are in a weak position before the law generally. Many people think they are protected because they are in a ‘common law marriage’. but this is incorrect. ‘Common law marriage’ has no status in law. Cohabiting couples have very little protection, and often they do not realise this until one of the couple passes away and the remaining partner finds out that they do not inherit anything. This could be because their partner had not updated their will, or because there is no will and the intestacy rules do not cover cohabitees. The best solution for cohabiting couple is to make sure they have up to date wills. Failing that a claim under the Inheritance Act 1975 may be the only option – get in touch to find out more.

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our blog looks at the rights of the cohabitee when their partner dies and how the Inheritance Act may help

Left out of your partner’s will? What can a cohabitee do?

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There’s a commonly held belief that if you live with someone without being married or in a civil partnership, you have the same rights as if you were married. This belief in the existence of a ‘common law marriage’ is wrong. The reality is that a cohabitee has no equivalent status to a spouse of civil partner. This means that, if you are a cohabitee and your partner dies, your only protection is from your partner’s will. If your partner hasn’t made a will, or hasn’t updated his or her will to include you, you may have to bring a claim under the Inheritance Act 1975.

Cohabitees and the rules of intestacy

Cohabitees have no claim under the rules of intestacy – and as nearly 2/3 of the UK population don’t have a will, and cohabitation is the fastest growing family type in the UK, it’s quite likely that many cohabitees are at risk of being left with nothing as the result of the intestacy process. It can also be a problem if the person who has died had a will, but it was not updated to reflect a new relationship.

How can the Inheritance Act 1975 help?

The Inheritance (Provision for Family and Dependants) Act 1975 offers a mechanism for people who are not included under the rules of intestacy, if there is no will. It also allows claims from people who have been left out of a will completely, or who have been included in the will, but have not been left as much as they need.

Since 1995, opposite sex cohabitees have been able to bring a claim under the Inheritance Act 1975. Following the Civil Partnerships Act 2004, same sex cohabitees can also claim under the Inheritance Act 1975.

Qualifying as a cohabitee

To bring a claim as a cohabitee, you must be able to show that you lived ‘in the same household’ as the person who died, for the 2 years leading up to his or her death. You must have lived with them ‘as husband or wife’ (section 1A of the Inheritance Act 1975). Section 1B contains identical provisions for same sex couples, although they must have lived together ‘as civil partners’ rather than as husband or wife. It’s important the remember that the law uses the words ‘household’ rather than ‘house’. In the case of Kaur v Dhaliwal [2014] 1991 (Ch), the couple had lived together for 1 year and 49 weeks. When Mr Dhaliwal’s son moved into their flat, Miss Kaur moved out for 3 weeks, to give her partner the opportunity to improve his relationship with his son. When Mr Dhaliwal died, Miss Kaur had only lived in the same house for 1 year and 49 weeks. However, the High Court agreed with the County Court that although she hadn’t physically lived in the same house for those 3 weeks, she was still part of the ‘household’, so she could bring a claim under section 1A of the Inheritance Act.

Reasonable Financial Provision for maintenance

While spouses and civil partners can claim for “…such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance…” Again, an identical provision exists for civil partners. Cohabitees who can satisfy section 1A or 1B can make a claim for “…such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

While a court looking at a claim from a spouse (or civil partner) can look at the situation in the same way as it might approach a division of assets in a divorce, for a cohabitee, it is less clear cut. What is reasonable provision for maintenance will depend on the individual circumstances of the case – someone living a more extravagant lifestyle may well be able to claim more than someone living a more frugal lifestyle. Equally, a cohabitee who is financially less dependant on his or her partner will need less than a dependant partner. While this might make sense from a purely practical perspective, it essentially ignores the emotional side of these kinds of case.

While there is still an inequality in treatment between spouses and civil partners on the one hand, and cohabitees on the other, in respect of what the Inheritance Act 1975 allows them to claim, it’s important to remember that the Act is there to assist cohabitees who find themselves left out of a will, or ignored under intestacy when their partner dies.

We are specialist will dispute solicitors, and will be happy to give you advice about your position and your ability to claim under the Act. If you’d like to find out more, get in touch.

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Court or Mediation – what’s the best way to resolve a will dispute?

Court or Mediation – what’s the best way to resolve a will dispute?

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One of the questions you are bound to ask yourself when you are thinking about challenging a will is “How will this all end?” Many people have very little involvement with legal disputes. Even their experience of working with a solicitor may be limited to buying a house. Many people have a mental picture of a court room drama playing out when they think of a will dispute. The reality is that many will disputes are resolved through mediation – although some will end up in court.

The advantages of mediation

Mediation has a number of advantages for both sides of a will dispute.

  • Challenging a will is a stressful process, and mediation can often result in a quicker resolution than waiting for a court date to become available.
  • Mediation can cost less than a full court hearing
  • You can agree things in mediation that a court can’t deliver
  • It may offer the opportunity to heal some of the relationships that may have been damaged through the course of the dispute.

Unlike some other legal dispute procedures, there is no requirement to try mediation when you are challenging a will, but it can be a productive way of resolving a dispute.

The uncertainty of a court hearing

Ultimately, if both sides in a will dispute cannot reach a compromise position, either through mediation, or negotiation, the matter will end up in Court. This will inevitably take longer and cost more than resolving the dispute through negotiation and mediation. The courts have less flexibility in the outcomes they can impose. There is little opportunity for the people involved to come to any sort of reconciliation. Finally, if you end up in court, both sides will have a decision imposed upon them which can leave you feeling even more disappointed.

What is involved in mediation?

Just as for a court hearing, mediation involves a certain amount of preparation in advance. Whether you are the claimant or the defendant in the case, you will attend at a location with your legal adviser. You will be allocated a room for the course of the mediation for you and your legal team, likewise your ‘opponent’ and their legal team will have their own room. The mediator will spend time with each of you to fully understand your positions, and then act as a go between with the aim of reaching a common position that you can both agree on.

Choosing mediation

Most solicitors involved in challenging wills are open to the possibility of mediation. We see it as a far more constructive route to resolving these very difficult disputes. Mediators are highly skilled facilitators who are experienced in helping people who are in dispute find common ground and reach resolution. As they are independent and can step back from the dispute, they can offer bring a different perspective to the process. This can be helpful to both the person challenging the will, and those who want to see the will kept as it is.

What if mediation doesn’t work

If mediation doesn’t work, and you cannot reach an agreement in this way, your options then do narrow down to going to court or withdrawing altogether from the dispute. Using mediation does not mean you can’t go to court later if the mediation doesn’t work. You could see going to court as a ‘final solution’, but it’s always worth considering mediation as a serious option first. You may be able to resolve your dispute without the additional stress and delay involved in going to court.

In some respects, looking at the question of court or mediation as an ‘either/or’ question does not recognise the fact that they are not mutually exclusive. You can try to mediate but this does not close off the possibility of going to court if necessary. At Willclaim Solicitors, we usually advise our clients to try and mediate if possible. Our experience is that if a court hearing can be avoided, this should be encouraged! We can talk you through your will dispute, and explain how mediation could work to bring about a swift resolution to the dispute allowing you to get on with your life. Get in touch if you’d like to find out more.

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Our will dispute expert looks at a holographic will and what it means

What’s a holographic will?

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A holographic will is one which is entirely handwritten by the Testator and signed by him (or her). In many ways, whether a will is handwritten or not makes no difference in England and Wales, because it must still be properly signed and witnessed in order to be valid. However, holographic wills can give rise to issues of validity and can cause problems with interpretation.

Do special rules apply to holographic wills?

In some jurisdictions, holographic wills do not need to be witnessed. The thinking behind this is that there is less chance that a will is a forgery if it has been entirely written by the Testator and signed by him. On the other hand, just because a will is holographic does not mean it won’t have been written as the result of the undue influence of someone else. Not only do holographic wills not always need to be witnessed to be valid, in some jurisdictions, a holographic will no longer needs to be entirely handwritten. Although some element of the will needs to be handwritten, other parts of it do not have to be.

At present, in England and Wales, no special rules apply to holographic wills. The normal rules contained in section 9 of the Wills Act apply to holographic wills as they do for any other document stated to be a will. This means that in England and Wales, a holographic will must be signed and witnessed like any other will. The same rules relating to will disputes and claims under the Inheritance Act also apply to a holographic will.

What are the problems with holographic wills?

Provided a holographic will is clear in its intentions, and is signed and witnessed in accordance with the Wills Act, it presents no more problem than any other type of will. However, issues often arise because the testator has not taken legal advice about how to set out his will, has failed to complete the formalities that are normally required for a will, or has poor written English which makes the content of the will confusing.

The recent case of Vucicevic demonstrated how a holographic will could cause difficulties, even without any real dispute about the contents of a will.

Holographic wills in the future

The recently closed Law Commission consultation on will reform looks at the question of will reform and considers whether holographic wills should be given a separate classification. Its preferred position is that holographic wills should not be treated any differently to a will that has been typed or is part handwritten, part typed, or handwritten by someone else – they should still be signed by the Testator and witnessed. Alongside the Law Commission’s concerns about holographic wills being open to forgery and undue influence, increasing will disputes, it would mean that there would be 2 possible ways of making a valid will. A traditional route, signed by the testator and witnessed, and the holographic route which would open the possibility for a will to be unwitnessed if it was entirely written in the testator’s own handwriting and signed by him.

Holographic Will and Will Disputes

In principle, there should be no difference in a will dispute between a holographic will and one that has been typed, or completed using an ‘off the shelf’ will writing kit where the testator fills in the blanks. However, in a scenario where the contents of a will are disputed, a holographic will might lead to even more heated challenges particularly if there are questions of undue influence.

If you have any questions about a will that you are concerned about, whether it’s a holographic will or not, get in touch. We are a specialist will dispute firm of solicitors, and will be happy to review your case for free and advise you on the next steps.

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choose a will dispute solicitor

Will dispute solicitor – how to choose

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Whether you wish to challenge a will, or you find yourself on the receiving end of a will dispute, you will almost certainly need expert legal advice. At a time when you will already be vulnerable following the death of a loved one, you need to choose a will dispute solicitor. Let’s be honest, it’s probably the last thing you want to do. On the other hand, choosing the right will dispute solicitor will help the process run far more smoothly.

Choose a will dispute solicitor who knows what they are doing

Any solicitor regulated by the Law Society will have a certain level of professional qualification and ability, but not all are experts in will disputes. This is a complex area of law. Many of the rules that apply date back to the nineteenth century. Although will disputes are on the rise, the majority do eventually resolve through some form of settlement, so there aren’t many decisions from the courts to help in the interpretation of the rules. You might be breaking new ground with your dispute. You need a solicitor with the right expertise in will disputes, who can handle it.

Ask about the realistic prospects of success

As well as experience, you need to choose a solicitor who is realistic about your case and your prospects of success. Whether you are challenging the validity of a will or asking for maintenance under the Inheritance Act 1975, these claims can be difficult to win for several reasons. On balance, it is better to work with a solicitor who will be realistic about your prospects of success from the outset. Unless every solicitor you speak to assures you that you have a cast iron case, you would be better to choose the solicitor who is realistic about your chances of winning, rather than one who is wildly optimistic.

Find a contentious probate expert you feel comfortable with

Once you have established the credentials of a few will dispute solicitors, one of the questions to ask yourself is “Which one do you feel most comfortable with?”. Any legal process can be stressful and emotional. Our experience is that a will dispute can be even more so. Any will dispute involves intensely personal family issues, and emotions usually run high. You need to be working with a solicitor you are happy to talk to and to take advice from.

Consider the question of legal costs

Legal fees are expensive. They reflect the expertise of the solicitor and the professionalism they will apply to your case. It may feel like a lot of money – but for the expertise and the ability to help you resolve your case, it’s a worthwhile investment. Fortunately, many solicitors, Will Claim included, can handle will disputes on a ‘no win no fee’ basis. This means pretty much what it says – you will only have to pay your solicitor’s legal costs if you do not win your case. There will always be other costs to pay – expenses involved in pulling the case together – but in comparison, these will be small.

Look for a solicitor who champions Alternative Dispute Resolution

The traditional view of a legal dispute involving two sides locked in a court room battle doesn’t really reflect the reality of what happens today. Although some cases are impossible to resolve with out the intervention of a court, far more disputes are resolved using some form of Alternative Dispute Resolution – mediation for example. There are many advantages to using mediation to resolve a will dispute. It reduces the costs (which, even on a no win no fee arrangement is an advantage), and usually means quicker resolution of the case. Mediation also allows you to resolve your dispute with more flexibility than a decision imposed by a judge. You can read more about the advantages of mediation in our blog.

Any google search will bring up a number of entries for contentious probate specialists and will dispute experts. Our advice is to get in touch with a few solicitors with experience in this field of law. You should find out about practical issues such as their charges and whether they can handle your case on a no win no fee basis. At the same time, think about how they respond to you – do you feel they have the expertise to handle your case? Are they sympathetic – and, perhaps more importantly – realistic?

The time you spend choosing the right will dispute solicitor will be time well spent. Will Claims is a specialist will dispute practice with extensive experience handling these sensitive legal issues. We offer no win no fee arrangements in nearly every case and will always discuss your case and explain the process with you, as well as the strengths and weaknesses of your case. This means you can make an informed decision whether to pursue your case or not. If you’d like to talk to us about your claim, get in touch!

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signature will formalities

Will formalities – will a more relaxed approach mean more disputes?

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A few weeks ago, the BBC reported that a court in Australia had agreed that an unsent text message could be treated as a will . Could this become a reality in the UK? And what could the impact be on will disputes? As we wait for the outcome of the Law Commission’s consultation on will reform (which ended on 10th November), we look at whether a relaxation of will formalities could lead to an increase in will disputes.

The current law on wills

The current law on wills in England and Wales is contained in the Wills Act 1837 which includes detailed rules about how someone must make their will. There are a number of formalities that have to be followed for a will to be valid. Modern society has also thrown up issues which are not really addressed in the existing legislation. The understanding of conditions such as dementia, the aging population generally, changes to family life and the increasing prevalence of digital technology all suggest that it is time the law relating to wills was updated.

Alongside this, the fact that a high percentage of the population still doesn’t have a will needs to be addressed. The rules of intestacy can often cause as many problems as a disputed will. One of the Law Commission’s concerns is the fact that many people do not make a will.

The Law Commission’s consultation on will formalities

The Law Commission has recognised that the law relating to wills and testamentary capacity needs to be updated. As far as the rules on will formalities are concerned, the consultation is considering whether the courts should have the power to uphold a will if it’s clear that this is what the deceased wanted, even if the usual formalities aren’t upheld. The key problem here is that many people are put off making a will because of the formality involved – or they make a will but this is not effective because they have not followed the correct formalities. On the other hand, if formalities are reduced, there is a greater possibility of wills being accepted when they should not be  – because they are forged or when the testator has made the will under pressure. This could lead to an increase in will disputes.

Text message wills are unlikely to become law!

Queensland, Australia relaxed the rules on what could constitute a will back in 2006. Even then, a will should be written and signed by 2 witnesses, but in this case, the judge in Brisbane Supreme Court ruled that the man concerned had clearly intended the text to be his will. Although unusual, in 2013, a DVD with ‘My Will’ written on it was also accepted in Queensland – overriding the usual requirement that a will should be written and signed by 2 witnesses.

The Law Commission consultation on will reform seems to be in favour of maintaining a system whereby a valid will must be in writing and signed by 2 witnesses. While it does see the benefit in relaxing some of the rules around attestation, the consultation is also in favour of tightening up rules around people who can sign a will on behalf of a testator.

The consultation is now closed and we will await the recommendations, but it seems from the questions asked in the consultation that they are unlikely to pave the way for an upsurge in will disputes. The questions the Law Commission have asked focus on written wills remaining the only appropriate form of will (although they recognise the attractions of video wills). The consultation looks at issues around who can sign a will on behalf of a Testator, whether the attestation clause should be removed for witnesses, and whether ‘holographic wills’ – wills that are completely handwritten by a testator but have not been witnessed – should be recognised as a separate class of will.

If you have any concerns about will and are considering what to do, why not get in touch? We are specialist will dispute solicitors and will be happy to talk to you about your case to explain our services and how we can help you.

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

Handwritten will valid despite poor English

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In many cases, people write their own wills, which can lead to problems down the line. In Vucicevic & Another v Aleksic & Others [2017] EWHC 255 (Ch), the Court looked at a handwritten will to establish its true intentions given imperfect written English and other problems including undated deletions and amendments, and no attestation clause.

In this case, it wasn’t so much a dispute between beneficiaries and potential beneficiaries which led to the legal action. The real problems arose from the need to decipher the intention of the will and how it should be interpreted. The Testator was born in Montenegro but came to Britain just after World War 2, and took British citizenship, settling in Wales. By the time he died, in 2014, he owned 2 houses in the UK, and a small property development in Montenegro, along with other investments, and left an estate worth £1,863,228.61 for probate purposes.

His ‘holographic’ handwritten will raised a number of problems. Underlying all the issues was a lack of clarity, partly arising from the Testator’s imperfect written English, but also because he was not specific enough in some of his bequests. The will included amendments and deletions that were undated. Finally, the will did not include an ‘attestation clause’.

Holographic wills

A holographic will is a handwritten will prepared by the Testator. Will writing ‘kits’ where people ‘fill in the blanks’ do not create a holographic will – the will must be entirely written by the Testator is his or her own hand. A holographic will is valid in the UK provided it has been properly witnessed. In this case, then, the fact that the will was handwritten was not a problem in itself.

Attestation Clause

The ‘attestation clause’ in a will is a clause that confirms that the legal requirements of the will have been met. In this handwritten will, there was no attestation clause – probably because the testator didn’t realise he should have one. The will did appear to be properly executed, and this issue was dealt with by obtaining affidavits of execution – statements from the executors to confirm that the will have been properly executed.

Undated amendments and deletions

The Testator had made a bequest to “Alex Dubljevic in Cardiff (Barrister)” who had helped him when he was undergoing treatment for cancer. The amount he was to have received had been deleted, and then at a later (unknown) date, “£2.000. Two” had been added to the will. Despite specialist forensic evidence, the Court could not be satisfied that the amendment was made before the will had been witnessed. As a result, the court had to ignore this and try and work out what the original bequest was. This worked in Mr Dubljevic’s favour as he ended up with £8,000 – even though this may not have been the Testator’s final intention.

Unclear beneficiaries and intentions

A couple of the beneficiaries under the will were unclear. The Testator left money to “Brit. Cancer Research”, and a more substantial legacy of property to the “Serbian Orthodox Church”. As far as the gift to the church was concerned, it was not clear whether it was a gift to the church itself, or given to the church ‘on trust’ for those in need in Kosovo. The court resolved both these issues with respect to legal principles. The legacy to a cancer charity ended up split between a number of UK cancer charities.

The gift to the church was partly resolved as the different branches of the Serbian Orthodox Church themselves came to an agreement that it should be the London branch that benefited. The judge decided then that the will had been clear enough to create a trust to be administered by the Serbian Orthodox Church for the benefit of those in need (particularly children) in Kosovo.

As experts in will disputes, we would always encourage everyone to make sure they have a valid will, properly drawn up by a reputable firm of solicitors. Although this case was not a ‘dispute’ as such, it’s a useful decision looking at the process for examining a handwritten will where the English is poor, and the wording unclear. Had there been real dispute among the beneficiaries or potential beneficiaries, the issues would have been compounded by these problems.

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challenge a will on grounds of undue influence, lack of knowledge and approval, forgery, lack of testamentary capacity and failure to properly execute the will

5 ways to challenge a will

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If you have been disappointed by the contents of a will, it’s natural that you will want to take action to challenge the will and rectify the situation. Sometimes it will be enough to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to for ‘maintenance’. In other cases, it will be necessary to show that the will was invalid and so should not stand. In order to challenge a will as being invalid, there are a number of possibilities open to you, depending on the circumstances in which the will was made. Here. We look at 5 ways to challenge a will.

  1. Undue Influence

If you want to challenge a will because of ‘undue influence’ you will have to show that the person who made the will was influenced by someone else to make the will in a particular way – and crucially. In a way that did not reflect the true intentions of the person who made the will.

If you are faced with a will that leaves property and assets in a way that appears suspicious – for example leaving the majority of the assets to one person at the expense of others who would seem to be equally deserving – you may well feel that someone has put pressure on the will maker. To challenge a will on the ground of undue influence is not always easy. Obtaining evidence of undue influence can be difficult – but it’s not impossible.

  1. Lack of Testamentary Capacity

‘Testamentary Capacity’ is a term used to describe someone who knows what property and assets they own, and the people they should potentially leave their property to: a spouse or partner, children, grandchildren. Provided someone is aware of this, they are said to have testamentary capacity.

Someone who does not have this awareness does not have testamentary capacity and cannot make a valid will. It could be due to a neurological condition such as dementia, or another reason. The important question is whether the person had testamentary capacity at the time they made the will. If a solicitor has been involved in making a will, particularly for an older client, they should take steps to establish whether he or she has the necessary capacity.

  1. Challenge a will – Lack of knowledge and approval

To challenge a will on this basis, you will need to show that the Testator did not know what was in the will, and approve it. These cases will generally centre around whether the Testator checked the will or read through it after it was prepared and before signing it. If the Testator has not done so, they will not have had a chance to check if the will reflected their true intentions. The solicitor might have made a mistake as to the instructions. There is also the possibility that someone else might have brought about changes to the will.

  1. Failure to execute the will properly

There are strict rules around how a will must be executed in order for it to be a valid document. The will must be signed by the Testator in the presence of 2 witnesses who will not benefit under the will. Where the will is executed makes no difference, provided the execution itself is completed properly. If the Testator has signed the will without the witnesses being present, the Testator can acknowledge his signature before the witnesses, who then sign the will.

If a will has not been properly executed, it is invalid. The previous will (or if there is no other will, the rules of intestacy) will then apply to distribute the assets of the estate.

  1. Forgery

If a will has been forged, it is invalid. Some forgeries can be very convincing, but there are forensic investigations that can be carried out to validate (or otherwise) a will that you are concerned about.

As already mentioned, if you succeed in challenging a will, it will be declared invalid and the previous will, or if no will, the rules of intestacy will apply.

Talk to us if you are thinking of challenging a will. We are experts in will disputes law, and can usually act on a ‘no win no fee’ basis.

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When a couple make mutual wills, they cannot make different wills later on without the agreement of the other

The power of mutual wills

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Many people – usually couples – make wills which are similar. They leave assets, property and other bequests to the same people. An example would be a couple who leave everything to each other and then to their children. If these wills include an agreement to do this, and not to revoke the will without the agreement of the other, these will be mutual wills.

The importance of mutual wills in a will dispute

In a will dispute, the claimant will challenge a will arguing that it is invalid. We often talk about the more ‘suspicious’ aspects of will validity – situations where there has been undue influence by someone over the Testator. Another common reason for challenging a will include that the Testator was not well enough to make a will, and did not understand what he or she was doing. People can also argue that the will is invalid because it has not been properly signed and witnessed.

If there is a mutual will in existence, this will mean that any later wills are invalid, without need to challenge them using one of these other reasons.

13 later wills invalid thanks to a mutual will

In Legg & Anor v Burton & Ors, the claimants challenged the final will of their mother, June Clark, made in December 2014. This was the latest in a long line of 13 wills made since she a will she made at the same time as her husband in 2000. Her husband had died in 2001.

The wills made in 2000 by husband and wife mirrored each other with both leaving their property to the other, and if the other had died, then the estate was to be shared equally between the daughters – the claimants in this case. In contrast, the 2014 will left the first claimant £10,000 and the second £30,000 with the rest of the estate, valued in total at £213,000 (net) shared between other beneficiaries.

The defendants argued that the 2000 wills did not have the necessary agreement to make them binding, ‘mutual wills’. The claimants argued that they did.

Looking at the evidence, the judge agreed that the wills themselves were identical in all respects, there was nothing to say they were ‘mutual’ or that they agreed not to revoke the will without the agreement of the other one. The claimants argued that the circumstances that made the wills ‘mutual’ arose outside the will – that there was an equitable trust which arose from the wills. The first claimant had been present when the Testatrix and her husband had executed their wills in 2000. Both gave evidence that the wills had been described as being ‘set in stone’ and that neither party wished to change their will in the future. Although the judge recognised that the claimants had a financial interest in the outcome of the case, he accepted their evidence. He found that the principle of mutual wills had been engaged. As a result, the subsequent wills made by the Testatrix failed, and the 2000 will was the valid will.

Relying on a mutual will needs good evidence

This case highlights a common problem in will disputes – that of obtaining good contemporaneous evidence of what happened when the will was drafted. In this case, the judge accepted the evidence of the claimants, both of whom had been present at (or immediately after, in the case of the second claimant) the execution of the wills. Had the judge not believed their evidence, the outcome might have been different. It also highlights the need for a good solicitor to be involved in drafting the original will. Mutual wills should expressly include an acknowledgement that this is what the intention is, and that the people making the mutual wills agree not to revoke their will without reference to the other.

If you are considering a will dispute, perhaps because you believe there was a mutual will in place that would overturn a later will, we can help. We offer a ‘no win no fee’ arrangement for most will disputes, and provide a free will claim assessment to get the ball rolling.

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lightbulb witnesses will give evidence to shed light Photo by Nick de Partee on Unsplash

Witnesses in a Will Dispute

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If you are thinking about challenging a will, one of the key things to consider is the evidence you will need to support your case, and any witnesses you will need to call. Your legal adviser will be able to talk to you specifically about the type of evidence your claim will require. In the meantime, here’s a rundown of the kinds of witness that might be involved in your will dispute.

Medical witnesses

The best kind of medical witness will be someone who was involved in treating the Testator in the run up to the date when he or she made the will that is in dispute. A doctor – whether a GP or a specialist – will be able to talk about the condition (or conditions) the Testator was suffering with, his or her state of mind, and potentially, any support or assistance he or she was receiving at the time. An alternative would be a medical expert who has seen the Testator’s medical records and can form an opinion about the same. This type of witness, and the medical evidence they can give, is especially important in cases where the validity of a will is being challenged on the grounds that the Testator lacked capacity to make a will, or was the subject of undue influence.

Legal Witnesses

Other than the Testator, the solicitor who draws up the will is probably one of the best people to give evidence about the circumstances in which the will was drawn up, and to the state of mind of the Testator at the time. Solicitors involved in the drafting of a will must follow what’s known as ‘the Golden Rule’. If a Testator appears infirm or unwell at the time of making the will, the solicitor should seek medical advice to satisfy himself that the Testator does have the necessary capacity to make a will.

Friends, other relatives or people who knew the Testator

People who saw the Testator in the run up to the making of the will and who can give evidence about his or her state of mind, or things that were going on in the Testator’s life. If you suspect that someone influenced the Testator into making a will in a particular way, but you were not on hand at the time, the evidence of people who were spending time with the Testator will be important. Even if there is no suggestion of undue influence, evidence from people who could talk about the Testator’s state of mind at the time he or she made the will, or who can give evidence that supports your contentions, may be important. In the case of Lloyd v Jones some of the witnesses who gave evidence included holiday makers who had regularly stayed on the campsite run by the Testator. They were able to give evidence that it had long been the Testator’s intention to leave the farm to her son (rather than her daughter) – the crux of the dispute in that case.

There may well be other witnesses whose evidence will be important if you pursue your will dispute – however, these are some of the most common witnesses that will be involved. Your legal adviser will talk you through the evidence you will need, and the process of obtaining evidence to support your case, once you have decided to go ahead. If you have any questions about will disputes, or you are thinking of challenging a will, get in touch. We offer a free claim assessment and can talk you through your case.

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

Setting aside gifts – mental capacity

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

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

The facts of Connolly v Connolly

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

The judge overturned the transfers of land.

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

Handing over title deeds is not evidence of intent to transfer

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

There may be incapacity, but not necessarily undue influence

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

The role of the solicitor in judging mental capacity

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

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

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

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

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

Concerned about a will? 4 steps to take

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

Register a Caveat

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

List the basis for your concerns

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

Gather together any evidence you have

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

Act quickly

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

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

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

The ‘moral claim’ of an adult child

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

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

The circumstances of the Claimant

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

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

A moral claim – or some other obligation

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

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

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

Estrangement where the child sought reconciliation

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

Victims of abuse

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

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

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

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

Mistake and testamentary capacity

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

A reminder about testamentary capacity

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

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

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

Can a mistaken belief affect capacity?

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

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

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

Mistake symptomatic of underlying condition

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

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

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

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

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

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

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

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

The trouble with Bruce Forsyth’s Will

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

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

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

Inheritance tax Issues and ‘doing the right thing’

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

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

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

A possible will validity claim

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

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

An Inheritance Act claim

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

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

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

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Keeling v Keeling looks at the deathbed gift

Keeling v Keeling – the failure of a death bed gift

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

The Facts of Keeling v Keeling

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

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

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

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

Inconsistent evidence

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

Limited role of the death bed gift

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

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

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

Ball v Ball and will disputes following sexual abuse

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

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

The Facts in Ball v Ball

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

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

The judge rejected all the claims.

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

Will dispute, testamentary capacity and ‘Mistake’

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

Moral Claims under the Inheritance Act following Ball v Ball

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

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

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

The Inheritance Act in action post-Ilott

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

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

The Facts of Nahajec v Fowle

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

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

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

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

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

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

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

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

Assessing financial provision

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

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

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

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

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

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

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

The Facts

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

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

The Court found that

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

Acknowledging a signature

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

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

Location of signature irrelevant

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

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

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

Testamentary freedom and the risks of relying on inheritance

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

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

Testamentary Freedom and the Inheritance Act

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

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

Adult children claiming under the Inheritance Act 1975

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

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

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

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

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

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

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

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

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

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

A ‘moral’ claim

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

More weight given to elderly or disabled children

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

A shift in emphasis but no change in the law

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

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

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

Intestacy, trusts and beneficial ownership of property

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

The Facts

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

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

The Court of Appeal held

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

Resulting Trusts and Constructive Trusts

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

Proprietary Estoppel

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

The importance of making a will

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

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

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

Challenging a Statutory Will – ‘best interests’ count

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

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

The Facts of ADS v DSM

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

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

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

Statutory Wills – ‘best interests’

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

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

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

The risk of undue influence

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

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

Challenging will validity – 5 points to consider

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

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

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

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

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

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

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

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how long will it take to resolve a will dispute

How long does it take to resolve a will dispute?

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

Are there any time limits?

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

Do I launch straight into a court process?

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

Can Alternative Dispute Resolution speed things up?

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

Does using ADR delay things?

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

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

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

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

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

Testing whether Inheritance Act Claims die with the Claimant

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

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

The Facts of Roberts v Fresco

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

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

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

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

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

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

An estate is not a ‘natural or legal person

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

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

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

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

Testamentary capacity and the effects of medication

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

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

The facts in White v Philips

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

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

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

Shifting the burden of proof

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

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

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

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

Testamentary Capacity & Medical Evidence

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

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

The facts in Hawes v Burgess

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

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

The Court of Appeal found that

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

Medical evidence after the event must be treated with care

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

Testamentary capacity and lack of knowledge and approval

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

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

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

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

How to spot a suspicious will

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

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

Homemade Will

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

Poorly written will

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

Inaccuracies

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

A radical departure from previous wills

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

Inexplicable dispositions

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

Lack of independence

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

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

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

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

Medical Evidence in a Will Dispute

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

The importance of medical evidence

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

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

Medical evidence and testamentary capacity

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

To have testamentary capacity, the person making the will must

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

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

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

Medical evidence and undue influence

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

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

Medical evidence may not be a complete answer

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

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

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

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

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

Evidence to challenge a will: a Larke v Nugus Statement

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

What is a Larke v Nugus statement?

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

Why is it called a Larke v Nugus statement?

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

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

What should a Larke v Nugus statement contain?

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

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

In practical terms, this can include

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

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

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

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

Maintained by the deceased – Inheritance Act claims

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

The Facts

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

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

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

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

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

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

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

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

Challenging Deathbed Gifts

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

Examples of a valid deathbed gift

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

Deeds relating to X farm to be given up at death

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

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

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

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

Deathbed gifts – the current position

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

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

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

Challenging a deathbed gift

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

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

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

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

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

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

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

The strict approach to the deathbed gift

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

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

The Facts

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

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

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

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

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

 ‘In contemplation of death’

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

A gift rather than testamentary intent

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

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

 

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A fountain pen to sign and execute a will

Executing a will – what not to do!

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

What is ‘executing a will’?

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

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

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

A will signed on behalf of the Testator 

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

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

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

Mistakes may be undone by the courts

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

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

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The Royal Courts of Justice

How easy is it to contest a will successfully?

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

‘Unfairness’ doesn’t come into it

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

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

Evidence to contest a will

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

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

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

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

A question of cost

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

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

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

Take a realistic view

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

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

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

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

Spotting suspicious behaviour surrounding a will

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

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

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

Before death

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

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

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

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

After Death

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

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

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

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

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

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

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