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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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A Mediator ’s View of a Will Dispute

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

How did you become a mediator?

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

What do you consider to be the value of mediation?

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

What is your role in the mediation?

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

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

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

Are there any ‘down sides’?

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

And the positives?

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

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

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

The benefits of Mediation in a will dispute

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

What is mediation?

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

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

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

Mediation puts the individuals involved in the claim back in control

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

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

Mediation offers flexibility

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

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

Mediation can result in creative and tax efficient settlements

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

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

Mediation offers a significantly more cost-effective option than litigation

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

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

Mediation can be a less stressful solution

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

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

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

The Anatomy of a Will Dispute

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

Initial Steps

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

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

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

Taking Legal Advice

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

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

Kicking off the claim

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

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

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

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

Negotiation and Mediation

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

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

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

A Day in Court

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

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

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

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The importance of knowledge and approval

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

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

The Facts

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

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

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

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

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

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

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

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

The costs of challenging a will

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

What are the costs of challenging a will?

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

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

Bringing a claim without legal advice

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

No win no fee

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

No win no fee from Will Claim

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

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

Entering a Caveat to raise your concerns

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

Moving quickly is vital

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

Time limits – and the question of evidence

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

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

Entering a Caveat

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

Some points to bear in mind about entering a caveat

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

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

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

Undue Influence or Fraudulent Calumny

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

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

What on earth is fraudulent calumny?

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

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

What is required to prove fraudulent calumny?

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

A poisoning of the mind

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

No other explanation

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

Knowledge of the lie

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

A natural beneficiary

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

Fraudulent Calumny in action

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

Not to be undertaken lightly

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

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

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

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Considering the question of ‘undue influence’ in more detail

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

Undue Influence – the principles

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

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

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

Vulnerability and constant telephone calls

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

‘A forceful man with a forceful presence’

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

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

Suspicious circumstances are not enough

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

Undue influence must be the only explanation

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

Expert advice is crucial

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

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Will disputes – taking action before the testator has died

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

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

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

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

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

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

Action before death

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

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

Steps to take

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

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

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The Trouble with Undue Influence

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

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

What is undue influence?

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

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

Proving Undue Influence

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

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

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

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