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