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

CONTESTING A WILL – HOW PROMISES CAN OVERRIDE WILLS

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

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

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

WILL CONTEST CLAIMS – WHAT IS PROPRIETARY ESTOPPEL?

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

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

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

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

• it would be unconscionable to go back on the assurance

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

WILL CONTEST CLAIMS – HOW EASY IS THIS TO PROVE?

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

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

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

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

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