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

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

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

The Facts

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

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

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

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

Considerations of financial resources and the needs of ALL involved

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

The Importance of Updating your Will

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

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

Testamentary capacity and the Golden Rule

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

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

What is ‘testamentary capacity’?

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

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

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

What is the Golden Rule?

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

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

What can you do?

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

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

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

Gifts to charity – can they be challenged?

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

Challenging a will under the Inheritance Act 1975

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

The facts in Ilott v Blue Cross and others

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

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

The Supreme Court Decision

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

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

Inheritance Act claims in the future

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

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

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

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A barrister's wig

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

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

Expertise

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

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

Independence and Objectivity

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

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

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

Assessment of the case

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

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

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

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

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

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

Who will be involved in a will dispute?

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

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

The Claimant

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

The Defendant

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

The Solicitor

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

The Witnesses

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

The Barrister

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

The Mediator

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

The Judge

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

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

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

Alcoholism and the validity of a will

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

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

The Facts

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

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

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

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

The involvement of an experienced solicitor

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

Control was given and not taken

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

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

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

A Mediator ’s View of a Will Dispute

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

How did you become a mediator?

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

What do you consider to be the value of mediation?

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

What is your role in the mediation?

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

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

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

Are there any ‘down sides’?

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

And the positives?

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

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

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

The benefits of Mediation in a will dispute

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

What is mediation?

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

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

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

Mediation puts the individuals involved in the claim back in control

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

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

Mediation offers flexibility

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

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

Mediation can result in creative and tax efficient settlements

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

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

Mediation offers a significantly more cost-effective option than litigation

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

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

Mediation can be a less stressful solution

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

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

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

The Anatomy of a Will Dispute

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

Initial Steps

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

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

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

Taking Legal Advice

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

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

Kicking off the claim

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

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

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

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

Negotiation and Mediation

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

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

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

A Day in Court

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

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

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

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The importance of knowledge and approval

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

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

The Facts

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

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

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

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

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

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

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

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

The costs of challenging a will

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

What are the costs of challenging a will?

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

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

Bringing a claim without legal advice

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

No win no fee

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

No win no fee from Will Claim

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

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

Entering a Caveat to raise your concerns

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

Moving quickly is vital

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

Time limits – and the question of evidence

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

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

Entering a Caveat

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

Some points to bear in mind about entering a caveat

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

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

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

Undue Influence or Fraudulent Calumny

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

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

What on earth is fraudulent calumny?

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

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

What is required to prove fraudulent calumny?

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

A poisoning of the mind

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

No other explanation

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

Knowledge of the lie

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

A natural beneficiary

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

Fraudulent Calumny in action

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

Not to be undertaken lightly

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

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

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

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Considering the question of ‘undue influence’ in more detail

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

Undue Influence – the principles

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

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

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

Vulnerability and constant telephone calls

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

‘A forceful man with a forceful presence’

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

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

Suspicious circumstances are not enough

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

Undue influence must be the only explanation

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

Expert advice is crucial

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

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inheritance act claims for reasonable financial provision

Will disputes – taking action before the testator has died

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

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

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

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

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

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

Action before death

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

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

Steps to take

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

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

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The Trouble with Undue Influence

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

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

What is undue influence?

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

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

Proving Undue Influence

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

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

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

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Reasons to use a will dispute expert

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

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

The Facts

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

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

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

Choosing the wrong solicitor can cause big problems

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

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

A question of experience & expertise

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

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

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

The intricacies of will dispute law

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

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

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

 

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

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

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

The Facts

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

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

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

No reasonable grounds

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

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

Feeling aggrieved is not enough

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

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

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Charities fight back to claim bequests

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

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

The Facts

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

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

The Questions for the Supreme Court

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

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

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

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

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Contesting a will – what are the risks?

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

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

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

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

  1. Not enough evidence to succeed

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

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

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

  1. Expensive legal fees

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

  1. Paying the other side’s costs

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

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

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