CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – CASE STUDY: GRANDMOTHER’S DECISION TO LEAVE HER HOME TO HER GRANDSON IS OVERTURNED BY DISPUTED WILL
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss a recent case which they successfully resolved and reflect on the result
The facts – grandmother’s decision to leave her home to her grandson is overturned by a disputed Will
These are the salient facts (with some adjustment to anonymise the parties):
• Our client lived with and was brought up by his grandmother and she prepared a Will which left him her home
• A subsequent Will was prepared when she had dementia which revoked the earlier Will under which our client received just £2,000
• The new Will was prepared by a firm of Solicitors and there was a supporting report from our client’s grandmother’s GP which appeared to confirm that she had capacity to make the Will
On the basis of the above, this didn’t look like a Will dispute or Will contest claim which we could win. Quite simply it appeared the Solicitors who prepared the Will had complied with what is known as the “golden rule” whereby when faced with a person wanting to make a Will who is elderly or ill, they should ordinarily seek an opinion from that persons treating doctor or GP to determine capacity. We discussed this in our previous blog at: https://www.willclaim.com/testamentary-capacity-golden-rule/
Compliance with the “golden rule” should have made the Will very difficult to dispute or contest.
Our services under a no win no fee agreement to contest and/or dispute the legal validity of the Will
Given the facts above, this was not an obvious case to take on under a no win no fee arrangement. However, and most importantly our client appeared sincere and honest during our preliminary discussions, providing a detailed and helpful background history, which suggested that in this instance his grandmother’s mental capacity was deficient when the Will was made and that she was subjected to undue influence. He was able to provide recordings
of his grandmother apparently freely stating her wish that he should have her home. He was able to produced correspondence with other Solicitors who were approached to make a Will before the disputed Will was made, apparently revealing a decision on their part that she didn’t have legal testamentary capacity and/or that she might be subject to undue influence by those benefiting under the disputed Will.
The “discovery” process can often determine whether we can continue to pursue a Will dispute or Will contest claim – in other words win it
In every dispute of this nature, there a “Pre Action” process to go through under which the parties to it must exchange relevant information and papers. If this doesn’t happen then the party at fault can be ordered to pay costs should legal proceedings have to be issued as a result. These rules can be found in the following document: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct
We have mentioned in an earlier blog providing a general guide to our services, that “discovery” is part of the process we follow in every case of this nature, to help to bring about a successful conclusion: https://www.willclaim.com/contesting-a-will-with-willclaim-com-a-general-guide-to-our-service/
In this instance, “discovery” produced the files of several Solicitors who were approached to make a Will for our client’s grandmother prior to the disputed Will. These Solicitors were clearly very uncomfortable about the process; their notes revealed our client’s grandmother’s wish to leave her home to our client remained and that she was being pressured by other near relatives. Further, they had considerable doubts about her legal capacity.
Why did the GPs report confirming capacity to make the Will not prove to be determinative
Ordinarily the GP report confirming the deceased had sufficient capacity to make the disputed Will should have been enough to determine the position. However in this case, as mentioned above, there were clear reports by other professionals questioning her capacity and documented evidence by them of possible undue influence. Moreover our further investigations revealed there had been no proper instruction of the GP in relation to the relevant test of capacity: https://www.willclaim.com/contesting-a-will-with-willclaim-com-understanding-capacity-tomake-a-will/
We actually found that the GP had been asked to produce a report about a completely different matter. Moreover, there was no evidence in his records that a proper assessment had been made. In the context of the deceased’s self-evident weakening mental function, it appeared plain that she had been vulnerable to pressure of a type, which perhaps when she had been younger and stronger, she would have shrugged off. This has been commented on in a number of recent court cases. For instance in Edwards v Edwards 2007 WTLR 1387: https://www.bailii.org/ew/cases/EWHC/Ch/2007/1119.html
As per Lewison J:
- There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) 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. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.
So how was this Will dispute and Will contest claim resolved?
This particular dispute was resolved at a mediation. Whilst a good claim, litigation riskapplies in every case which means that it is not possible to guarantee that at trial, we will win. Moreover, there are always unrecovered costs associated with a trial. In this context, we successfully negotiated a settlement whereby our client received approximately 80% of the value of his grandmother’s home plus our costs.
If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.