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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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