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

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

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

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

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

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

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

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

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

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

IN OUR NEXT BLOG WE TRY AND IDENTIFY THE TYPE OF WILL CLAIM, WILL CONTEST CLAIM AND WILL DISPUTE CLAIM, WHICH WE ARE MOST LIKELY TO WIN AND THEREFORE AGREE TO WORK ON UNDER A NO WIN NO FEE ARRANGEMENT.
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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HOW DO I CONTEST A WILL? COMMON MISTAKES

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

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

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

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

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

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

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

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

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CONTESTING A WILL – THE LIMITS OF THE WILL DISPUTE PROCESS

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

What was this will dispute case about?

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

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

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

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

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

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HAS IT BECOME LESS RISKY TO CONTEST A WILL?

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What is at risk if you contest a Will?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is what it says:

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

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

Section 116 Senior Courts Act 1981

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

This is what it says:

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

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

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

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TOP TIPS FOR CONTESTING A WILL

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What are the potential pitfalls?

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

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

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

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

What steps should you take to contest a will?

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

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

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

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

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

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

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

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

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

HOW DISINHERITED INFANT CHILDREN CAN INHERIT

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

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

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

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

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

For example:

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

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

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

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

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

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

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

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

Why not challenge her Will?

There were no obvious grounds:

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

So what could we do to challenge her Will?

There were three primary avenues of attack:

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

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

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

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A fountain pen to sign and execute a will

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

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

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

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

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

Tenants in common

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

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

Joint tenants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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rolling dice and weighing up the risks of contesting a will

WHAT BEHAVIOURS OR SCENARIOS CAN LEAD TO A WILL DISPUTE

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

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

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

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

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

JOINT BANK ACCOUNTS IN WILL CONTEST CASES

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

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

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

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

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

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

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

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

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

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

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

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

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instruct your will dispute solicitor for success

Your Will Dispute Solicitor – 5 Questions to ask

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

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

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

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

  1. How will I fund my case?

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

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

  1. What should I do next?

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

  1. Will I have to go to court?

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

  1. What happens if the dispute is successful?

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

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

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

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charitable organisations and contentious probate

Contentious Probate and Charitable Organisations

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

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

 

The Inheritance (Provision for Family and Dependants) Act 1975

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

The Facts of Ilot v Mitson

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

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

The Judgment

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

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

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

In his judgment, Lord Hughes said,

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

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

Further Possibilities for Charitable organisations

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

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

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letter of wishes and reasonable financial provision

Thompson v Raggett: Letter of Wishes and Reasonable Financial Provision

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

The Facts of Thompson v Raggett

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

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

Reasonable Financial Provision

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

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

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

The risk inherent in a letter of wishes

At the end of the judgement, the judge stated,

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

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

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

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

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

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

The Facts of Nutt v Nutt

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

Testamentary Capacity

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

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

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

Knowledge and Approval

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

Undue Influence in Nutt v Nutt

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

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

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

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

Conclusions of the court in Nutt 

Master Clark stated in the judgement,

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

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

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

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

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

Interpreting the Testator’s Intentions: Tish v Olley

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

The Facts of Tish v Olley

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

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

Maintenance

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

The Dispute

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

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

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

Applying Contract Principles

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

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

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

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

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

The Judgement

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

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

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

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inheritance act claims for reasonable financial provision

Inheritance Act Claims: What is Reasonable Financial Provision?

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Understanding Inheritance Act claims

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

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

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

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

Lewis v Warner [2017] EWCA Civ 2182

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

 

A Roof Over One’s Head

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

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

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

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

Spouses and Civil Partners and Inheritance Act claims

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

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

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

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

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

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

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

Conclusions

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

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

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

Forged Wills and Will Fraud

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

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

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

Suspicious Circumstances may indicate will fraud

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

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

Burden of Proof in cases of forgery or will fraud

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

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

What to do if you suspect will fraud

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

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

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

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

A Reminder of the 5 Grounds to Challenge a Will

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

  1. Undue Influence

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

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

    1. Challenging a will for Lack of Testamentary Capacity

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

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

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

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

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

  1. Rectification

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

  1. Forgery or Fraud

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

The Inheritance (Provision for Family and Dependants) Act 1975

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

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

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

5 Things to Know about Proprietary Estoppel

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

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

  1. Land and Farming

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

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

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

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

  1. Assurances

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

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

  1. Reliance

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

  1. Detriment

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

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

  1. Remedies in proprietary estoppel cases

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

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

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

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some advice to help you manage costs in a will dispute

3 Ways to Keep Costs Low in a Will Dispute

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

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

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

  1. Mediation can reduce costs

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

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

  1. Building a Strong Case

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

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

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

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

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

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

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

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

  1. Testamentary capacity or undue influence?

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

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

  1. The test for testamentary capacity

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

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

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

  1. The Golden Rule and testamentary capacity

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

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

  1. Not Just Wills

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

  1. Family Consequences

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

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

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challenging wills and property co ownership

Property Co-Ownership and Challenging Wills

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

Joint Tenants or Tenants in Common?

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

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

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

The Facts of Hume v Leavey and Hume

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

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

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

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

Challenging wills – challenging property transactions

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

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

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

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

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

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

Capacity and Marriage

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

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

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

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

The Judgement

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

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

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

Conclusions

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

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

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

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

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

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

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

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

Lack of Testamentary Capacity and The Golden Rule

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

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

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

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

Inheritance Act and Codicils could prevent will disputes

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

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

Conclusions

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

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

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

How Does Probate Work?

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What is Probate?

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

The role of the executor in probate

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

Steps to Applying for a Grant of Representation

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

Inheritance Tax Form

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

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

Sending The Application: Things to Include

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

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

Swearing an Oath

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

The Position if there is no Will

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

Challenging a Will

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

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

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Undue influence is hard to prove - read out blog

5 Things to Know About Undue Influence

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What is Undue Influence?

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

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

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

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

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

  1. The high burden of proof

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

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

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

  1. The difficulty of gathering evidence

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

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

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

  1. The existence of third party legal advice

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

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

  1. Too many grounds for a Will Dispute

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

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

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

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

Legal advice and Undue Influence

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

The Facts of Brindley v Brindley

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

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

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

Undue Influence

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

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

The Judgement in Brindley v Brindley

Judge Klein, the judge on the case, noted:

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

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

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

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

Independent Legal Advice

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

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

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

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

The Role of the Courts in a Will Dispute

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

Starting the Process in the Courts

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

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

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

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

Civil Courts

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

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

The Appeals System

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

Legal Costs  

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

Alternatives to the Court System

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

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

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

Reasonable Provision: An Update on Lewis v Warner

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

Claiming Reasonable Financial Provision under the Inheritance Act 1975

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

 

The Facts of Lewis v Warner

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

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

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

 

The Court of Appeal

The Court of Appeal answered two questions:

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

 

The First Question: Definitions under the Inheritance Act 1975

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

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

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

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

The Second Question: The Order to Accept Market Value

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

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

Conclusions

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

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

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

3 Key Points about the Golden Rule

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

What is the Golden Rule?

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

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

Build a strong case supporting your will dispute claim

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

 

  1. Understanding Testamentary Capacity

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

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

 

  1. Obtaining Evidence

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

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

 

  1. An Uncomfortable Conversation

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

Conclusions

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

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

Proprietary Estoppel in an Inheritance Dispute

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

What is Proprietary Estoppel?

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

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

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

The inheritance dispute in Habberfield v Habberfield

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

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

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

The Judgement

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

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

Remedy

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

Conclusions

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

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

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5 benefits of mediation in a will dispute

Five Reasons to Consider Mediation in a Will Dispute

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What is Mediation?

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

  1. Financial Benefits of Mediation

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

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

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

 

  1. Control of the Process

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

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

  1. Certainty of the Outcome

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

  1. Flexibility of Possible Solutions

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

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

  1. Less Stressful than a Court Hearing

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

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

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rules of intestacy in will disputes

When a Successful Will Dispute Means the Rules of Intestacy Matter

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

Married Couples and Civil Partners

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

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

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

Children and Direct Descendants

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

Other Relatives

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

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

People who Cannot Benefit Under the Intestacy Rules

Those who cannot inherit through intestacy rules include:

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

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

If the Deceased Person Had No Living Relatives

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

Conclusions

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

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undue influence claim

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

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

The Facts of Wharton v Bancroft

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

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

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

Reasoning of the Judgment

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

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

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

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

The “Golden Rule” in an undue influence claim

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

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

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

Conclusions

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

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

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

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contesting wills

Contesting Wills: Five Things to Consider

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

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

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

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

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

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

  1. What evidence do you have?

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

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

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

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

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

  1. How long does contesting wills take?

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

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

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

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

Does An Inheritance Act Claim Die with the Claimant?

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

The Case of Roberts & Anor v Fresco

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

The facts of Roberts v Fresco

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

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

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

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

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

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

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

Was there another remedy under the Inheritance Act?

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

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

 

 

 

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challenging a will may be the only way to achieve justice

Things to know before challenging a will!

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

A ‘will’ is an important legal document

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

There are 2 main ways to challenge a will

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

Challenging the validity of a will

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

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

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

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

  1. Lack of valid execution

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

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

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

  1. Lack of knowledge and approval of the will

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

  1. Undue influence

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

Challenging the contents of a will

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

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

Challenging a will can be a lengthy process

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

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

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

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

Challenging a will can be expensive

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

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

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chess executor and beneficiary conflict of interest

Recognising a Conflict When a Beneficiary is Also an Executor

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

Beneficiaries and executors

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

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

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

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

The case of Heath v Heath

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

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

The Removal of Timothy Heath as Executor

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

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

What this means for an executor who is challenging a will

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

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

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don't miss the time limit on Inheritance Act claims

Don’t Delay Bringing Inheritance Act Claims

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

What are the time limits for making Inheritance Act claims?

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

 What is the benefit of bringing a claim promptly?

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

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

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

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

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

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

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

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

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

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

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old couple capacity to marry

Capacity to marry – what about making a will?

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

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

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

The facts in DMM, Re (2017)

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

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

Capacity to make a will?

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

The decision on capacity to marry

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

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

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

Future wills?

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

What can we take from this case?

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

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

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

When survivorship clauses can cause confusion!

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

The facts in Jump & Jones v Lister

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

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

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

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

Survivorship clauses

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

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

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

Take care drafting your wills!

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

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

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

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

Why are documents important in a will dispute?

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

What is pre-action disclosure in a will dispute?

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

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

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

Who will organise pre-action disclosure?

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

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

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

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

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

Pre-action disclosure and no win no fee arrangements

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

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

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

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

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

What is a no win no fee arrangement?

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

How can a no win no fee arrangement help?

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

What about initial advice?

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

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

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

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

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

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

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

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

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5 things to know about testamentary capacity

5 things to know about Testamentary Capacity

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

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

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

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

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

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

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

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

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

  1. Knowledge and approval often dovetails with testamentary capacity

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

And finally…

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

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

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Challenging wills using Fraudulent calumny

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

The facts in Christodoulides v Marcou

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

The decision – and application to appeal

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

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

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

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

Proving a will in solemn form

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

Evidence of fraudulent calumny

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

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

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

Inheritance Act claims – Living in the same household

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

Cohabitees claiming under the Inheritance Act 1975

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

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

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

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

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

Living in the same household

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

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

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

Dix applied in Kaur v Dhaliwal

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

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

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

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

Comment from our will dispute expert

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

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