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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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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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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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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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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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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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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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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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our blog looks at the rights of the cohabitee when their partner dies and how the Inheritance Act may help

Left out of your partner’s will? What can a cohabitee do?

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There’s a commonly held belief that if you live with someone without being married or in a civil partnership, you have the same rights as if you were married. This belief in the existence of a ‘common law marriage’ is wrong. The reality is that a cohabitee has no equivalent status to a spouse of civil partner. This means that, if you are a cohabitee and your partner dies, your only protection is from your partner’s will. If your partner hasn’t made a will, or hasn’t updated his or her will to include you, you may have to bring a claim under the Inheritance Act 1975.

Cohabitees and the rules of intestacy

Cohabitees have no claim under the rules of intestacy – and as nearly 2/3 of the UK population don’t have a will, and cohabitation is the fastest growing family type in the UK, it’s quite likely that many cohabitees are at risk of being left with nothing as the result of the intestacy process. It can also be a problem if the person who has died had a will, but it was not updated to reflect a new relationship.

How can the Inheritance Act 1975 help?

The Inheritance (Provision for Family and Dependants) Act 1975 offers a mechanism for people who are not included under the rules of intestacy, if there is no will. It also allows claims from people who have been left out of a will completely, or who have been included in the will, but have not been left as much as they need.

Since 1995, opposite sex cohabitees have been able to bring a claim under the Inheritance Act 1975. Following the Civil Partnerships Act 2004, same sex cohabitees can also claim under the Inheritance Act 1975.

Qualifying as a cohabitee

To bring a claim as a cohabitee, you must be able to show that you lived ‘in the same household’ as the person who died, for the 2 years leading up to his or her death. You must have lived with them ‘as husband or wife’ (section 1A of the Inheritance Act 1975). Section 1B contains identical provisions for same sex couples, although they must have lived together ‘as civil partners’ rather than as husband or wife. It’s important the remember that the law uses the words ‘household’ rather than ‘house’. In the case of Kaur v Dhaliwal [2014] 1991 (Ch), the couple had lived together for 1 year and 49 weeks. When Mr Dhaliwal’s son moved into their flat, Miss Kaur moved out for 3 weeks, to give her partner the opportunity to improve his relationship with his son. When Mr Dhaliwal died, Miss Kaur had only lived in the same house for 1 year and 49 weeks. However, the High Court agreed with the County Court that although she hadn’t physically lived in the same house for those 3 weeks, she was still part of the ‘household’, so she could bring a claim under section 1A of the Inheritance Act.

Reasonable Financial Provision for maintenance

While spouses and civil partners can claim for “…such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance…” Again, an identical provision exists for civil partners. Cohabitees who can satisfy section 1A or 1B can make a claim for “…such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

While a court looking at a claim from a spouse (or civil partner) can look at the situation in the same way as it might approach a division of assets in a divorce, for a cohabitee, it is less clear cut. What is reasonable provision for maintenance will depend on the individual circumstances of the case – someone living a more extravagant lifestyle may well be able to claim more than someone living a more frugal lifestyle. Equally, a cohabitee who is financially less dependant on his or her partner will need less than a dependant partner. While this might make sense from a purely practical perspective, it essentially ignores the emotional side of these kinds of case.

While there is still an inequality in treatment between spouses and civil partners on the one hand, and cohabitees on the other, in respect of what the Inheritance Act 1975 allows them to claim, it’s important to remember that the Act is there to assist cohabitees who find themselves left out of a will, or ignored under intestacy when their partner dies.

We are specialist will dispute solicitors, and will be happy to give you advice about your position and your ability to claim under the Act. If you’d like to find out more, get in touch.

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Court or Mediation – what’s the best way to resolve a will dispute?

Court or Mediation – what’s the best way to resolve a will dispute?

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One of the questions you are bound to ask yourself when you are thinking about challenging a will is “How will this all end?” Many people have very little involvement with legal disputes. Even their experience of working with a solicitor may be limited to buying a house. Many people have a mental picture of a court room drama playing out when they think of a will dispute. The reality is that many will disputes are resolved through mediation – although some will end up in court.

The advantages of mediation

Mediation has a number of advantages for both sides of a will dispute.

  • Challenging a will is a stressful process, and mediation can often result in a quicker resolution than waiting for a court date to become available.
  • Mediation can cost less than a full court hearing
  • You can agree things in mediation that a court can’t deliver
  • It may offer the opportunity to heal some of the relationships that may have been damaged through the course of the dispute.

Unlike some other legal dispute procedures, there is no requirement to try mediation when you are challenging a will, but it can be a productive way of resolving a dispute.

The uncertainty of a court hearing

Ultimately, if both sides in a will dispute cannot reach a compromise position, either through mediation, or negotiation, the matter will end up in Court. This will inevitably take longer and cost more than resolving the dispute through negotiation and mediation. The courts have less flexibility in the outcomes they can impose. There is little opportunity for the people involved to come to any sort of reconciliation. Finally, if you end up in court, both sides will have a decision imposed upon them which can leave you feeling even more disappointed.

What is involved in mediation?

Just as for a court hearing, mediation involves a certain amount of preparation in advance. Whether you are the claimant or the defendant in the case, you will attend at a location with your legal adviser. You will be allocated a room for the course of the mediation for you and your legal team, likewise your ‘opponent’ and their legal team will have their own room. The mediator will spend time with each of you to fully understand your positions, and then act as a go between with the aim of reaching a common position that you can both agree on.

Choosing mediation

Most solicitors involved in challenging wills are open to the possibility of mediation. We see it as a far more constructive route to resolving these very difficult disputes. Mediators are highly skilled facilitators who are experienced in helping people who are in dispute find common ground and reach resolution. As they are independent and can step back from the dispute, they can offer bring a different perspective to the process. This can be helpful to both the person challenging the will, and those who want to see the will kept as it is.

What if mediation doesn’t work

If mediation doesn’t work, and you cannot reach an agreement in this way, your options then do narrow down to going to court or withdrawing altogether from the dispute. Using mediation does not mean you can’t go to court later if the mediation doesn’t work. You could see going to court as a ‘final solution’, but it’s always worth considering mediation as a serious option first. You may be able to resolve your dispute without the additional stress and delay involved in going to court.

In some respects, looking at the question of court or mediation as an ‘either/or’ question does not recognise the fact that they are not mutually exclusive. You can try to mediate but this does not close off the possibility of going to court if necessary. At Willclaim Solicitors, we usually advise our clients to try and mediate if possible. Our experience is that if a court hearing can be avoided, this should be encouraged! We can talk you through your will dispute, and explain how mediation could work to bring about a swift resolution to the dispute allowing you to get on with your life. Get in touch if you’d like to find out more.

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Our will dispute expert looks at a holographic will and what it means

What’s a holographic will?

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A holographic will is one which is entirely handwritten by the Testator and signed by him (or her). In many ways, whether a will is handwritten or not makes no difference in England and Wales, because it must still be properly signed and witnessed in order to be valid. However, holographic wills can give rise to issues of validity and can cause problems with interpretation.

Do special rules apply to holographic wills?

In some jurisdictions, holographic wills do not need to be witnessed. The thinking behind this is that there is less chance that a will is a forgery if it has been entirely written by the Testator and signed by him. On the other hand, just because a will is holographic does not mean it won’t have been written as the result of the undue influence of someone else. Not only do holographic wills not always need to be witnessed to be valid, in some jurisdictions, a holographic will no longer needs to be entirely handwritten. Although some element of the will needs to be handwritten, other parts of it do not have to be.

At present, in England and Wales, no special rules apply to holographic wills. The normal rules contained in section 9 of the Wills Act apply to holographic wills as they do for any other document stated to be a will. This means that in England and Wales, a holographic will must be signed and witnessed like any other will. The same rules relating to will disputes and claims under the Inheritance Act also apply to a holographic will.

What are the problems with holographic wills?

Provided a holographic will is clear in its intentions, and is signed and witnessed in accordance with the Wills Act, it presents no more problem than any other type of will. However, issues often arise because the testator has not taken legal advice about how to set out his will, has failed to complete the formalities that are normally required for a will, or has poor written English which makes the content of the will confusing.

The recent case of Vucicevic demonstrated how a holographic will could cause difficulties, even without any real dispute about the contents of a will.

Holographic wills in the future

The recently closed Law Commission consultation on will reform looks at the question of will reform and considers whether holographic wills should be given a separate classification. Its preferred position is that holographic wills should not be treated any differently to a will that has been typed or is part handwritten, part typed, or handwritten by someone else – they should still be signed by the Testator and witnessed. Alongside the Law Commission’s concerns about holographic wills being open to forgery and undue influence, increasing will disputes, it would mean that there would be 2 possible ways of making a valid will. A traditional route, signed by the testator and witnessed, and the holographic route which would open the possibility for a will to be unwitnessed if it was entirely written in the testator’s own handwriting and signed by him.

Holographic Will and Will Disputes

In principle, there should be no difference in a will dispute between a holographic will and one that has been typed, or completed using an ‘off the shelf’ will writing kit where the testator fills in the blanks. However, in a scenario where the contents of a will are disputed, a holographic will might lead to even more heated challenges particularly if there are questions of undue influence.

If you have any questions about a will that you are concerned about, whether it’s a holographic will or not, get in touch. We are a specialist will dispute firm of solicitors, and will be happy to review your case for free and advise you on the next steps.

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signature will formalities

Will formalities – will a more relaxed approach mean more disputes?

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A few weeks ago, the BBC reported that a court in Australia had agreed that an unsent text message could be treated as a will . Could this become a reality in the UK? And what could the impact be on will disputes? As we wait for the outcome of the Law Commission’s consultation on will reform (which ended on 10th November), we look at whether a relaxation of will formalities could lead to an increase in will disputes.

The current law on wills

The current law on wills in England and Wales is contained in the Wills Act 1837 which includes detailed rules about how someone must make their will. There are a number of formalities that have to be followed for a will to be valid. Modern society has also thrown up issues which are not really addressed in the existing legislation. The understanding of conditions such as dementia, the aging population generally, changes to family life and the increasing prevalence of digital technology all suggest that it is time the law relating to wills was updated.

Alongside this, the fact that a high percentage of the population still doesn’t have a will needs to be addressed. The rules of intestacy can often cause as many problems as a disputed will. One of the Law Commission’s concerns is the fact that many people do not make a will.

The Law Commission’s consultation on will formalities

The Law Commission has recognised that the law relating to wills and testamentary capacity needs to be updated. As far as the rules on will formalities are concerned, the consultation is considering whether the courts should have the power to uphold a will if it’s clear that this is what the deceased wanted, even if the usual formalities aren’t upheld. The key problem here is that many people are put off making a will because of the formality involved – or they make a will but this is not effective because they have not followed the correct formalities. On the other hand, if formalities are reduced, there is a greater possibility of wills being accepted when they should not be  – because they are forged or when the testator has made the will under pressure. This could lead to an increase in will disputes.

Text message wills are unlikely to become law!

Queensland, Australia relaxed the rules on what could constitute a will back in 2006. Even then, a will should be written and signed by 2 witnesses, but in this case, the judge in Brisbane Supreme Court ruled that the man concerned had clearly intended the text to be his will. Although unusual, in 2013, a DVD with ‘My Will’ written on it was also accepted in Queensland – overriding the usual requirement that a will should be written and signed by 2 witnesses.

The Law Commission consultation on will reform seems to be in favour of maintaining a system whereby a valid will must be in writing and signed by 2 witnesses. While it does see the benefit in relaxing some of the rules around attestation, the consultation is also in favour of tightening up rules around people who can sign a will on behalf of a testator.

The consultation is now closed and we will await the recommendations, but it seems from the questions asked in the consultation that they are unlikely to pave the way for an upsurge in will disputes. The questions the Law Commission have asked focus on written wills remaining the only appropriate form of will (although they recognise the attractions of video wills). The consultation looks at issues around who can sign a will on behalf of a Testator, whether the attestation clause should be removed for witnesses, and whether ‘holographic wills’ – wills that are completely handwritten by a testator but have not been witnessed – should be recognised as a separate class of will.

If you have any concerns about will and are considering what to do, why not get in touch? We are specialist will dispute solicitors and will be happy to talk to you about your case to explain our services and how we can help you.

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

Handwritten will valid despite poor English

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In many cases, people write their own wills, which can lead to problems down the line. In Vucicevic & Another v Aleksic & Others [2017] EWHC 255 (Ch), the Court looked at a handwritten will to establish its true intentions given imperfect written English and other problems including undated deletions and amendments, and no attestation clause.

In this case, it wasn’t so much a dispute between beneficiaries and potential beneficiaries which led to the legal action. The real problems arose from the need to decipher the intention of the will and how it should be interpreted. The Testator was born in Montenegro but came to Britain just after World War 2, and took British citizenship, settling in Wales. By the time he died, in 2014, he owned 2 houses in the UK, and a small property development in Montenegro, along with other investments, and left an estate worth £1,863,228.61 for probate purposes.

His ‘holographic’ handwritten will raised a number of problems. Underlying all the issues was a lack of clarity, partly arising from the Testator’s imperfect written English, but also because he was not specific enough in some of his bequests. The will included amendments and deletions that were undated. Finally, the will did not include an ‘attestation clause’.

Holographic wills

A holographic will is a handwritten will prepared by the Testator. Will writing ‘kits’ where people ‘fill in the blanks’ do not create a holographic will – the will must be entirely written by the Testator is his or her own hand. A holographic will is valid in the UK provided it has been properly witnessed. In this case, then, the fact that the will was handwritten was not a problem in itself.

Attestation Clause

The ‘attestation clause’ in a will is a clause that confirms that the legal requirements of the will have been met. In this handwritten will, there was no attestation clause – probably because the testator didn’t realise he should have one. The will did appear to be properly executed, and this issue was dealt with by obtaining affidavits of execution – statements from the executors to confirm that the will have been properly executed.

Undated amendments and deletions

The Testator had made a bequest to “Alex Dubljevic in Cardiff (Barrister)” who had helped him when he was undergoing treatment for cancer. The amount he was to have received had been deleted, and then at a later (unknown) date, “£2.000. Two” had been added to the will. Despite specialist forensic evidence, the Court could not be satisfied that the amendment was made before the will had been witnessed. As a result, the court had to ignore this and try and work out what the original bequest was. This worked in Mr Dubljevic’s favour as he ended up with £8,000 – even though this may not have been the Testator’s final intention.

Unclear beneficiaries and intentions

A couple of the beneficiaries under the will were unclear. The Testator left money to “Brit. Cancer Research”, and a more substantial legacy of property to the “Serbian Orthodox Church”. As far as the gift to the church was concerned, it was not clear whether it was a gift to the church itself, or given to the church ‘on trust’ for those in need in Kosovo. The court resolved both these issues with respect to legal principles. The legacy to a cancer charity ended up split between a number of UK cancer charities.

The gift to the church was partly resolved as the different branches of the Serbian Orthodox Church themselves came to an agreement that it should be the London branch that benefited. The judge decided then that the will had been clear enough to create a trust to be administered by the Serbian Orthodox Church for the benefit of those in need (particularly children) in Kosovo.

As experts in will disputes, we would always encourage everyone to make sure they have a valid will, properly drawn up by a reputable firm of solicitors. Although this case was not a ‘dispute’ as such, it’s a useful decision looking at the process for examining a handwritten will where the English is poor, and the wording unclear. Had there been real dispute among the beneficiaries or potential beneficiaries, the issues would have been compounded by these problems.

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lightbulb witnesses will give evidence to shed light Photo by Nick de Partee on Unsplash

Witnesses in a Will Dispute

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If you are thinking about challenging a will, one of the key things to consider is the evidence you will need to support your case, and any witnesses you will need to call. Your legal adviser will be able to talk to you specifically about the type of evidence your claim will require. In the meantime, here’s a rundown of the kinds of witness that might be involved in your will dispute.

Medical witnesses

The best kind of medical witness will be someone who was involved in treating the Testator in the run up to the date when he or she made the will that is in dispute. A doctor – whether a GP or a specialist – will be able to talk about the condition (or conditions) the Testator was suffering with, his or her state of mind, and potentially, any support or assistance he or she was receiving at the time. An alternative would be a medical expert who has seen the Testator’s medical records and can form an opinion about the same. This type of witness, and the medical evidence they can give, is especially important in cases where the validity of a will is being challenged on the grounds that the Testator lacked capacity to make a will, or was the subject of undue influence.

Legal Witnesses

Other than the Testator, the solicitor who draws up the will is probably one of the best people to give evidence about the circumstances in which the will was drawn up, and to the state of mind of the Testator at the time. Solicitors involved in the drafting of a will must follow what’s known as ‘the Golden Rule’. If a Testator appears infirm or unwell at the time of making the will, the solicitor should seek medical advice to satisfy himself that the Testator does have the necessary capacity to make a will.

Friends, other relatives or people who knew the Testator

People who saw the Testator in the run up to the making of the will and who can give evidence about his or her state of mind, or things that were going on in the Testator’s life. If you suspect that someone influenced the Testator into making a will in a particular way, but you were not on hand at the time, the evidence of people who were spending time with the Testator will be important. Even if there is no suggestion of undue influence, evidence from people who could talk about the Testator’s state of mind at the time he or she made the will, or who can give evidence that supports your contentions, may be important. In the case of Lloyd v Jones some of the witnesses who gave evidence included holiday makers who had regularly stayed on the campsite run by the Testator. They were able to give evidence that it had long been the Testator’s intention to leave the farm to her son (rather than her daughter) – the crux of the dispute in that case.

There may well be other witnesses whose evidence will be important if you pursue your will dispute – however, these are some of the most common witnesses that will be involved. Your legal adviser will talk you through the evidence you will need, and the process of obtaining evidence to support your case, once you have decided to go ahead. If you have any questions about will disputes, or you are thinking of challenging a will, get in touch. We offer a free claim assessment and can talk you through your case.

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In Ball v Ball the court would not uphold a will dispute in which teh children had been abused by their father and the husband of the testatrix

Ball v Ball and will disputes following sexual abuse

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In the recent case of Ball v Ball [2017] EWHC 1750 (Ch), the court had to deal with a will dispute which arose when the wife of an abuser disinherited 3 of the children who reported their father to the police.

The impact of sexual abuse on a victim can last all their life. Even on the death of their abuser, they may continue to suffer. This is certainly the case if the abuser is a family member who then disinherits the victim – a final act of retribution, perhaps, in retaliation for reporting the abuse, or simply a final act of control. This is recognised by the courts in the context of an abuser/victim relationship – but what if the Testator was not the abuser?

The Facts in Ball v Ball

3 of the children of James Ball and his wife reported their father to the police in relation to sexual abuse that he had carried out. The abuse was known about from as early as the 1960/70s. Mrs Ball, talked to all 11 of their children about whether they had other allegations to make. At that point, no report was made to the police. Following a family dispute in 1991, the 3 children who had been abused previously then reported their father to the police. Mr Ball admitted the offences in respect of 2 of his children and received a suspended sentence. In 1992, Mrs Ball made a will which effectively disinherited the 3 children who had made complaints to the police. She felt the complaints were exaggerated even though she accepted there was some truth in them. She was also upset that the complaints had been made public when she thought they had dealt with them within the family. Mr Ball died in 2004, Mrs Ball in 2013.

The children concerned brought a will dispute claim. They argued that their mother had made in 1992 claiming that she had been subject to undue influence, or lacked mental capacity to make the will. They also brought a claim under the Inheritance Act (Provision for Family & Dependants) Act 1975. The argument in relation to testamentary capacity was that Mrs Ball was misled as to the facts and believed that her husband was innocent when he was actually guilty. On the point of undue influence, the claimants argued that the Testator made her will at the same time as her husband, used the same solicitor and was under great stress at the time.

The judge rejected all the claims.

  • On the facts as he (the judge) found them, Mrs Ball was aware that 3 of her children had reported their father to the police and that he had admitted some of the claims of abuse. She was not misled as to his guilt or innocence.
  • Mrs Ball was the dominant partner in the relationship and the fact that they made their wills at the same tie and using the same solicitor, and that Mrs Ball was under a lot of stress, did not amount to positive evidence of undue influence on the husband’s part over his wife.
  • The sexual abuse by the father did not give rise to a ‘moral claim’ by the claimants under the Inheritance Act in respect of their mother’s estate.

Will dispute, testamentary capacity and ‘Mistake’

Although the judge found, on the facts, that the wife was not misled as to her husband’s abuse of their children and his guilt, he went on to consider whether a mistake could negate testamentary capacity. Reviewing a number of authorities that were introduced during the hearing of this will dispute, the judge found that a mistake would only be relevant when it was a symptom of some underlying condition – for example dementia – that removed capacity. In Ball v Ball, it was accepted that Mrs Ball was not suffering any physical or mental illness at the time she made the will, so even if there had been a mistake (which the judge found there was not), in these circumstances it would not have been enough to challenge Mrs Ball’s testamentary capacity.

Moral Claims under the Inheritance Act following Ball v Ball

Following the Supreme Court in Ilott v Blue Cross, the issue of whether there is a ‘moral’ element to a claim by an adult child under the Inheritance Act has come to the fore. In that case, the Testatrix had disinherited the daughter apparently in retaliation for her choice of partner, and despite attempts by the daughter to seek reconciliation. While accepting the proposition that sexual abuse by a testator could be taken into account, following the judgment in Marks v Shafier [2001] All ER (D) 193 (Jul), in this case, the Testatrix was not the abuser. When looking at all the other circumstances, including the size (modest) of the estate, the financial circumstances of all the beneficiaries as well as the claimants. In Ball v Ball, Mrs Ball’s clear intention to disinherit the claimants throughout the 20 years following the will’s execution, the judge could not uphold the Inheritance Act claim.

Above else, this case illustrates the fact that however distressing the circumstances may be that lead to the will dispute, the courts can only declare a will to be invalid, or award maintenance under the Inheritance Act, if the legal requirements to do so are met. While it may seem harsh that these 3 claimants received nothing from their mother, the will was a valid will, and the conditions to make an award under the Inheritance Act were not met.

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In Nahajec, the Court awarded maintenance under the Inheritance Act for a daughter to pursue veterinary nurse studies

The Inheritance Act in action post-Ilott

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A couple of weeks ago, we published a blog about testamentary freedom following Ilott v Blue Cross – and now we can report on what seems to be the first case decided under the Inheritance Act since the Ilott v Blue Cross decision.

In the first judgement to look at the question of maintenance under the Inheritance Act for an estranged adult child since the landmark decision in Ilott v Blue Cross, a judge has awarded £30,000 to a Testator’s daughter despite his express wishes to disinherit all his children.

The Facts of Nahajec v Fowle

This claim was made by Elena Nahajec. Her father, Stanley Nahajec, made a will on 7 July 2015 by which he disinherited his children – Ms Nahajec, who was his daughter from his second marriage, and his 2 sons from his first marriage. He explained his decision to disinherit in writing, as follows:

…I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare.

All of my children are of independent means and have or have had their own life and family and are, to my knowledge, sufficiently independent of means not to require any provision from me.

In the circumstances I do not feel it appropriate for (sic) necessary to make any provision for them in my will…

Mr Nahajec died on 19th July 2015, shortly after making his will. His daughter brought the claim arguing that the estrangement was due to the actions of the Testator rather than any behaviour on her part. She argued that she had attempted to rekindle the relationship on several occasions, but that he had always rebuffed her attempts, and had ‘never been there for her’ as she grew up. Having heard evidence from one of Ms Nahajec’s half-brothers that he had received similar treatment by his father, and reviewing the decision of the Supreme Court in Ilott v Blue Cross, the judge decided:

  • Mr Nahajec’s will did NOT make reasonable provision for his daughter
  • The estate was of sufficient size to justify provision for the daughter, as well as provision for the sole beneficiary and other claimants (the claimant’s half-brother had also made a claim which had been settled)
  • Financial provision should be made in the sum of £30,000
The importance of the facts of each case

The facts of this case may seem very like those in Ilott: an estranged daughter who had made attempts to maintain a relationship with the deceased parent. The judge made it clear that his decision was not made because of the similarity to the facts in Ilott, but as the result of the facts in the case before him. Every case will be different, and so must be dealt with on its own facts, and not because it is similar to a previous case.

The judgement in this case demonstrates clearly the balancing act the court should carry out, weighing up all the factors to determine the issues in the case. Recognising that the case was fact specific, the judge went on to weigh up the circumstances of both the claimant – the estranged daughter, and of the sole beneficiary under the will. The judge was clearly impressed by the honesty of the Testator’s daughter and the relatively modest nature of her claim. She sought money only to enable her to complete a veterinary nursing course.

Assessing financial provision

The Claimant had initially claimed the sum of £70,227 to cover a number of elements including fees to cover resitting GCSEs to enable to gain the appropriate qualifications to then go on and train as a veterinary nurse; the fees for the veterinary nursing course; transport costs whilst on the veterinary nurse course including the purchase of a car; a sum to discharge indebtedness; and a sum to cover her living expenses while she studied. The proposal was reduced following a concession that the fees for the veterinary nurse course could be funded by a student loan.

The judge considered that an award simply to cover the Claimant’s indebtedness would be too little, but that an award of £59,000 (the original amount claimed less the veterinary nurse course fees) would be too high. He was considering a claim by an adult child, not a spouse, and as such had to confine his award to ‘maintenance’. He therefore awarded £30,000 as being a reasonable amount – his “…best estimate of the capitalised cost of maintenance for a reasonable time going forward to take into account the possibility, albeit contingent, of the claimant undertaking a course which ultimately results in her becoming a veterinary nurse and which enables her to look after herself financially if such a course is undertaken.”

Any claim bought under the Inheritance Act by an adult child will depend on the facts of the specific case, so this is a useful illustration of how the facts might play out – in the balancing act that must be carried out by the judge deciding the different elements of the claim. If you feel that your parent’s will fails to make reasonable provision for you, we can help talk you through the issues and work out the best way forward. Get in touch with us today.

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how long will it take to resolve a will dispute

How long does it take to resolve a will dispute?

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How long does it take to resolve a will dispute? You may have read about the long-running case of Ilot v Mitson which involved a dispute about a will in which a woman left her estate to animal charities rather than to her estranged daughter. The legal process took over 10 years, from the first court decision, to the final decision earlier in 2017 from the Supreme Court. While it’s unlikely to take 10 years, any legal action can take a long time, so it’s worth bearing in mind how long it can take to resolve a will dispute.

Are there any time limits?

Different types of legal action have different time limits. You may be aware of this from other types of legal action you may have been involved in – for example a claim for personal injury. If you are bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you have 6 months from the date of the grant of probate to start your claim. If you are bringing a claim challenging the validity of a will (and not a claim under the 1975 Act) there is no time limit. However, the longer you leave it, the harder it may be to gather good evidence to support your case.

Do I launch straight into a court process?

Assuming that you bring your claim within 6 months of the grant of probate (whatever type of claim you are bringing), it is likely that there will be a certain amount of preparation and discussion before you get close to a court. It may be possible to resolve your dispute relatively quickly through an exchange of correspondence and a process of ‘disclosure’ with solicitors representing ‘the other side’: this may be the executors of the will, the other beneficiaries under the will, or a combination. This process has the benefit of allowing both sides to consider the evidence and to take decisions based on all the facts, potentially helping to resolve a will dispute more quickly. Even if it does not allow for a successful conclusion of the dispute at that stage, it may well open the way for Alternative Dispute Resolution.

Can Alternative Dispute Resolution speed things up?

Alternative Dispute Resolution including Mediation can offer a number of benefits to those involved in a will dispute, not least the fact that it can result in a swifter conclusion of the matter. Mediation is something we use regularly, and you can read more about mediation, and its role in a will dispute, here. Rather than waiting for court time, the people involved in the will dispute agree to appoint a mediator, and set up the mediation themselves. You can use mediation at any stage before reaching trial, so even if initial attempts to mediate fail, it may be possible to conclude proceedings through mediation at a later stage, still saving time.

Does using ADR delay things?

If you have started court proceedings, these will continue to unfold regardless of whether you are attempting to seek a mediated conclusion to the proceedings. The court’s timetable is inevitably slower than any timetable of negotiation and/or mediation – and should you reach a conclusion through ADR, the court proceedings can then be withdrawn.

If I can’t mediate – or the other side won’t – how long am I looking at?

It can take a year or more to get to an initial hearing in court. As those involved in Ilot v Mitson – and others – have found, this is not always the end of things. Should one side decide to appeal a decision, the will dispute can continue for some time, first to the Court of Appeal, then to the Supreme Court – although this is the exception rather than the rule, and means there is an important point of law involved in the case.

Highlighting the potential length of time it may take to resolve a will dispute is not intended to put you off. However, it’s important to be realistic about how long it may take – and how long it will be before you can move on. Get in touch with us to discuss your situation and the details of the will dispute you are considering. We offer a free claim assessment , and will be able to give you a better idea of how long things may take once we have reviewed the facts of your case.

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A cautious thumbs up for medical evidence in cases involving testamentary capacity and lack of knowledge and approval

Testamentary Capacity & Medical Evidence

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While medical evidence is an important factor in cases where the Testator’s capacity to make a will is disputed, there are other matters to be considered.

When a will appears to be manifestly unfair, leaving out a child for no apparent reason, it must raise questions about the state of mind of the Testator. This will inevitably lead to a look at available medical evidence, and potentially expert medical evidence based on GP or hospital notes made at the time the will was made. In Hawes v Burgess, the Court of Appeal considered the issue of medical evidence prepared for the court by an expert who had not examined the patient.

The facts in Hawes v Burgess

Mrs Burgess had 2 daughters and a son. Previous wills had treated her children equally. In 2007, Mrs Burgess created her final will which effectively disinherited her son Peter in favour of her daughters Libby and Julia. Mrs Burgess died in 2009, and had been suffering from vascular dementia at the time of her death. Peter and Libby challenged the will on the grounds that she did not have testamentary capacity and also that she did not have ‘knowledge and approval’. They relied on expert medical evidence prepared by a Professor Jacoby. He had not met Mrs Burgess. Julia relied on the fact that the solicitor who had prepared the will, Mr Webster, had followed ‘the golden rule’.

The judge at first instance upheld the challenge both on grounds of testamentary capacity and also on the grounds that Mrs Burgess lacked knowledge and approval. While the Court of Appeal upheld the decision on the grounds that there was a lack of knowledge and approval, they declined to uphold the decision on capacity.

The Court of Appeal found that

  • Mrs Burgess had been close to Peter up until the point of her death
  • Julia, the daughter who sought to rely on the 2007 Will had been instrumental in the making of it;
  • Peter and Julia had fallen out at the time the disputed Will was made; and
  • the solicitor, Mr Webster, had not send a draft Will to Mrs Burgess for her to check before executing the Will

Medical evidence after the event must be treated with care

In this case, the Court of Appeal was reluctant to find that there was a lack of capacity. The role of the experienced solicitor, Mr Webster, was crucial in this. He was independent, had taken instructions in person and had made attendance notes of the meeting. Even though Mr Webster was happy to accept that he had no medical training and had not seen Mrs Burgess alone when the will was drawn up, the Court of Appeal felt that his assessment of the deceased’s state of mind should not be overturned by medical evidence provided by someone who had not met the deceased. The situation might have been different had the solicitor been less experienced or been less careful in his or her notemaking; equally, if the medical evidence had been provided by someone who had treated or at least assessed the deceased at the time the will was made, this might have carried more weight.

Testamentary capacity and lack of knowledge and approval

As already mentioned, although the Court of Appeal declined to determine the case on the issue of testamentary capacity, the challenge to the 2007 will succeeded on the basis that there was a lack of knowledge and approval of the contents of the will. If there is evidence of testamentary capacity, knowledge and approval is likely to be presumed (although a will could be challenged on other grounds, for example that there has been undue influence).

However, if testamentary capacity is in doubt, or there are other suspicious circumstances surrounding the making of the will, a claim for knowledge and approval may be worth pursuing as it is then for the person seeking to rely on the will to show that the will does indeed reflect the intentions of the Testator.

If you have any questions about challenging a will, or if you benefit under a will which is being challenged, do get in touch to discuss your case!

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Do you think you are considering a suspicious will? Is there a question mark over some aspect of it?

How to spot a suspicious will

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You may already be worried about the circumstances in which a relative or loved one drew up a will – we looked at these in an earlier blog, Spotting Suspicious Behaviour Surrounding a Will . On the other hand, you may not have had any cause for concern until you have seen the will, after the Testator has died. If, at this point, you are disappointed by the contents of the will, the will itself may raise suspicions.

If you have suspicions about a will, it may be possible to bring a claim challenging a will on the grounds that the Testator lacked knowledge of the content of the will and/or did not approve the contents of the will. If you can raise suspicions, the burden of proof shifts to the person seeking to rely on the will to show that the Testator did know and approve the contents of the will. It’s therefore helpful to be aware of pointers in the will itself that can be indicative of suspicious circumstances.

Homemade Will

There is no need to involve a solicitor or legal expert in drafting a will, but the fact that no legal adviser has been involved may be suspicious taking in to account other factors.

Poorly written will

A will peppered with spelling mistakes, which is badly drafted, or uses language that would have confused the Testator could arouse suspicions

Inaccuracies

A will which is inaccurate or includes statements which would not be recognised as the sort of thing the Testator would say.

A radical departure from previous wills

If the disputed Will is not the first will of the Testator, and the contents are radically different from previous wills, this may well be suspicious without a sensible explanation for the change.

Inexplicable dispositions

If the person seeking to rely on the will was not otherwise close to the Testator – for example a cleaner or carer, this may be suspicious.

Lack of independence

If those who witnessed the will cannot be said to be ‘independent’, you may have cause for concern

If the will contains any of these elements, you may well see other events at the time the will was drawn up in a different light: Odd behaviours on the part of the testator or suspicious behaviour by the person who is seeking to rely on the will that perhaps meant nothing at the time.

While challenging a will is by no means straightforward, if you are concerned about the contents of a will and would like to explore the possibility of bringing a claim, get in touch with us.

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a stethoscope - how will medical evidence help you in a will dispute?

Medical Evidence in a Will Dispute

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Where someone is seeking to challenge a will, they may be looking to argue that the person who made the will (the Testator) did not have ‘capacity’ to do so. Another possibility is that they have been subject to ‘undue influence’ at the time they made the will. In all these circumstances, medical evidence may be important. In this blog, we look at the role of medical evidence in a will dispute.

The importance of medical evidence

When a will dispute arises, it is important to ascertain in as much detail as possible, what was going on for the Testator at the time they made their will. As the Testator is obviously unable to give evidence, those looking to either prove or disprove the validity of a will must look to other evidence.

Medical evidence – GP notes, hospital records, notes from other medical professionals involved in the Testator’s care at the time, and in the run up to the time, the will was made can offer an important insight into the extent of the Testator’s understanding of what was going on, and state of mind generally.

Medical evidence and testamentary capacity

If you are challenging a will on the grounds that the Testator did not have ‘testamentary capacity’, medical evidence to suggest the Testator was suffering from dementia or similar, will be helpful to your case.

To have testamentary capacity, the person making the will must

  • Understand the nature of making a will and the effect of doing so
  • Understand the extent of his property that his will covers
  • Understand claims that he should give effect to (those people – dependants – who should ordinarily be included in the will)
  • Not be suffering from any ‘disorder of the mind’ which has an impact on how his will is written

A Testator who appears confused or otherwise has been acting irrationally or out of character may be suffering from a ‘disorder of the mind’. It’s important to bear in mind that the solicitor preparing the will (if a solicitor is involved) should take care to follow ‘the golden rule’ which puts a responsibility on him or her to assess whether the Testator does indeed have testamentary capacity.

If you are concerned that the Testator did not have testamentary capacity, and the will leaves you disappointed to the extent that you are considering a challenge to the will, medical evidence will form an important part of your case. These will potentially be the best indication of your relative’s state of mind at the time they made the will.

Medical evidence and undue influence

Undue influence does not require a Testator to be unwell, either physically or mentally. However, a vulnerable Testator will potentially be more susceptible to the influence of an individual who sets his or her mind to doing so, with a view to manipulating the Testator in a particular way.

In these circumstances, medical evidence may point to the Testator being lonely, or in poor health which enabled the individual concerned to isolate the testator from family or friends and exercise control over them. It will be helpful to obtain GP notes and any hospital records as these may not only indicate the Testator’s situation but may make reference to particular individuals that seem to be playing a prominent part in the Testator’s life at the time.

Medical evidence may not be a complete answer

While medical evidence can be invaluable in establishing testamentary capacity, or in supporting a claim for undue influence, there are some situations where it will not be helpful. Medical notes are prepared with the patient’s treatment and ongoing health situation in mind, not in preparation for a will dispute. Any medical evidence put forward by an expert at the time of the will dispute will be based on those notes. A medical expert will not be able to examine and interview the patient in person – he or she can only apply his or her expert knowledge to what is included in the notes.

As a result, it is very likely that the medical evidence will only offer part of the picture and it will be important to gather other information in relation to the Testator – particularly in an undue influence case.

When you contact a solicitor who specialises in will disputes, they will advise you on the types of evidence that will be helpful in your particular case. We offer a free initial claim assessment to help you understand the strengths (and weaknesses) of your will dispute claim, and what you will need in terms of evidence (medical and otherwise) to support your claim.

If you’re thinking of disputing a will – get in touch!

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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

Evidence to challenge a will: a Larke v Nugus Statement

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The evidence needed to challenge a will successfully can be difficult to obtain – not least because by definition, the person who made the will is deceased. However, if a solicitor was involved in drawing up the will that you now intend to challenge, their evidence may be important. If a solicitor did draw up the will you think is invalid, obtaining a ‘Larke v Nugus’ statement will be part of the evidence gathering process.

What is a Larke v Nugus statement?

A ‘Larke v Nugus statement’ refers to evidence from a solicitor involved in drawing up a will. The statement should contain information from the solicitor relating to all the circumstances, as far as he or she is aware of them, surrounding the will. The person seeking to challenge the will, and their legal team, will find this helpful in assessing the strength of the validity claim.

Why is it called a Larke v Nugus statement?

Like many aspects of the law, the rules surrounding the procedure for disputing a will derive from case law – the decisions of the courts in earlier cases. This is so for the Larke v Nugus statement. In 1959, the Law Society issued a practice direction covering the situation in which a solicitor who had prepared a will could give details relating to those events. This was confirmed in Larke v Nugus. Essentially, there had been a question mark over whether the circumstances surrounding the drawing up of a will was protected by client confidentiality. In Larke v Nugus the Court of Appeal confirmed that in cases of a will dispute, the solicitor who had drawn up the will would be a material witness and should therefore provide evidence about

  • the circumstances in which the testator gave instructions for the will; and
  • the circumstances in which the will was executed

What should a Larke v Nugus statement contain?

According to the Law Society’s Practice Direction, a Larke v Nugus statement should contain

“ a full statement of evidence as to the preparation of the will, and the circumstances in which it was executed to anyone who has an interest in the dispute, whether or not you are acting for any of the parties”.

In practical terms, this can include

  • how long the solicitor in question knew and/or acted for the Testator
  • Who introduced the solicitor to the Testator
  • When the instructions to make the will were received
  • How the instructions were communicated (in person, by phone, by letter)
  • Observations the solicitor made about the Testator’s knowledge of what he or she was doing (making a will), and whether the Testator was otherwise confused or stressed or behaving out of character
  • Whether there was any discussion about previous wills; where the new (disputed) will was significantly different from previous wills, any discussion around the reasons for this
  • Any explanations that were given as to the provisions of the will and what they would mean
  • A description of the execution of the will – in terms of who was present and what happened.

In addition to the information disclosed in the Larke v Nugus statement, it is usually appropriate to request a copy of the ‘will file’ held by the solicitor concerned, which will contain documents such as attendance notes, any drafts, and other information – for example details of how the solicitor reassured him/her self that the client had testamentary capcity – if this is an issue.

Ultimately, obtaining a Larke v Nugus statement is about attempting to resolve a matter without going to court. In the absence of any other clear evidence, the solicitor’s evidence, both in the statement and from the will file, may well prove the will is valid, (or, equally, cast sufficient doubt on its validity). Either way, you will have a clearer idea of the strength of your case and may offer more scope to resolve the matter through dispute resolution.

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

Martin v Williams – when a will hasn’t been updated

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The High Court has recently considered a claim under the Inheritance Act 1975 in circumstances where the will left everything to the Testator’s wife, from whom he had been separated for many years, and nothing to his long term partner. We look at Martin v Williams [2017] EHWC 491 (Ch) .

The Facts

At the time of his death in 2012, Mr Martin had been separated from his wife, Maureen Martin, for many years, although they had never divorced. He had been cohabiting with Joy Williams for 18 years, but had not updated his will to reflect his changed circumstances. The will left everything to his wife, Maureen Martin, including Mr Martin’s share of the home he owned with Ms Williams as Tenants in Common.

Perhaps not surprisingly, Ms Williams brought a claim under the Inheritance Act (Provision for Family and Dependants) Act 1975, essentially seeking an order granting her Mr Martin’s share of the property they shared. The Judge in the Central London County Court found in her favour. He agreed that she was living in the same household as Mr Martin as his wife and had been for 2 years before his death, and was entitled to apply for maintenance under the Inheritance Act. He found that the will did not make reasonable provision for her, and granted her Mr Martin’s beneficial interest in their home.

Mrs Martin challenged this in the High Court, and succeeded on 3 of the 6 grounds of her appeal.

  • The judge in the County Court had made errors in his assessments of the financial positions of the parties – he should have considered the fact that Ms Williams had an interest in another property; he had also overstated the position of Mrs Martin without good reason.
  • The judge had also incorrectly applied the provisions of the Inheritance Act 1975 by failing to apply the statutory test in determining what reasonable financial provision for Ms Williams would be; by conducting a ‘needs based’ assessment with respect Mrs Martin; and not considering whether Mr Martin’s limited estate was sufficient to satisfy the interests of both Mrs Martin and Ms Williams.
  • Taking this into consideration, while the High Court judge agreed that Ms Williams had not been given ‘reasonable financial provision’, he held that granting the beneficial interest in the property to Ms Williams was excessive. The correct position was to grant Ms Williams a life interest in the 50% share of the shared property – so she could continue to live there while she was alive, reverting back to Mrs Martin on her death.

Considerations of financial resources and the needs of ALL involved

The High Court found that the judge in the County Court had wrongly disregarded Ms Williams’ interest in a second property. He had done so because Ms Williams’ sister lived in the property and he felt that Ms Williams could not be expected to evict his sister to raise money. The High Court was also critical of the judge’s approach to Mrs Martin – he did not challenge her evidence, but then did not accept her evidence in looking at her financial needs and resources – as another beneficiary under the will. The case highlights the importance of the court balancing the competing interests that come in to play when a claim is brought under the Inheritance Act – something the Supreme Court touched on in the recent case of Ilott v Blue Cross and others.

The Importance of Updating your Will

If nothing else, this case highlights of the importance of making sure you keep your will up to date. There was no evidence that Mr Martin intended to leave Ms Williams out of his will, or have his share of their home in the event of his death. However, by failing to update his will when he and Mrs Martin separated, and again when he and Ms Williams purchased a property together, this was the result – along with the attendant stress and costs of legal action.

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A barrister's wig

Why do I need a barrister to advise on my will dispute?

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Once you’ve engaged a solicitor to represent you in a will dispute, you may be surprised when he or she recommends using a barrister. It won’t always be necessary to use a barrister, but there are plenty of situations that arise when challenging a will (or defending a challenge to a will), when a barrister will provide vital advice both on legal matters and on strategy. In this blog we look at the role of a barrister in more detail, and what they bring to a will dispute, talking to Amy Berry , a barrister specialising in inheritance, wills and probate issues, from Pump Court Chambers.

Expertise

You will have chosen your solicitor on the basis that they are expert in this field. A barrister can add a further layer of expertise, particularly when considering negotiation strategy, or a forthcoming court hearing. As Amy explains,

As specialists in contentious probate, dealing with these issues on a day to day basis and in a variety of different situations, a barrister is in the best position to assess a will dispute objectively, to look for any weaknesses in an argument and to cross check the facts

Independence and Objectivity

As solicitors specialising in contentious probate, we will be involved in the day to day conduct of your case – preparing documents, gathering evidence, writing letters and dealing with the procedure of putting your case together and making sure matters such as deadlines are respected. A barrister will take a step back, and view the matter in the round. Amy continues:

It’s fundamental to understand that barristers are independent. Barristers are usually self-employed, and will be brought in to a will dispute by a solicitor to provide objective and practical advice both on the strength of the case you are bringing or defending, and also in relation to the procedure and strategy that should be followed for the best outcome.

Barristers are also independent of each other – even if we are in the same ‘chambers’. We are governed by strict rules of conduct which means that if there is any question of a conflict of interest, we will not be able to be involved. This can be confusing for people who aren’t used to the way barristers work. You may find that barristers acting for both Claimant and Defendant in a will dispute are from the same chambers – but this does not mean that there is a conflict. Even more often you have a mediator from the same set as a barrister representing a party in the mediation. There is no conflict in such situations and no reason to be alarmed. There will only be a conflict if those barristers have discussed one side of the case between themselves and after that one takes the brief for the other side with knowledge that they would not have but for those discussions – and the rules of conduct and our independence means that this should not happen.

Assessment of the case

Once we have gathered together all the evidence and perhaps engaged in some initial negotiation with the solicitors acting for the other side in the will dispute, a barrister’s objectivity is often indispensable for making a realistic assessment of the claim and the likelihood of it succeeding if the matter was to be heard by a judge in court.

Barristers are not only experts in the areas of law they specialise in, they are also trained in court procedure and are experts in assessing practical matters that can strengthen – and perhaps more importantly weaken – a claim, or defence in a will dispute.

Although I will probably have had the papers in a case beforehand, quite often, I will meet a Claimant or Defendant in a will dispute for the first time at a mediation or at court. At this point, my job will be to look at practical aspects of the case and explain these to the client. I can sometimes suggest a different way of looking at a dispute, or a possible outcome; for example, tax benefits from reaching a negotiated settlement through mediation which might not be available should a matter reach the courts. A solicitor may have been able to discuss these with a client, however, barristers will often have more experience of solutions which have been reached in other situations.

Finally, when a barrister is involved at a mediation stage, or brought in to a case in preparation for a court hearing, they will be assessing the personalities involved and how they may react in a court room situation. One of the benefits of mediation is that it avoids the need for the confrontation of a court hearing which may cause huge amounts of stress to parties or to the witnesses which may have a bearing on the outcome of the case.

Bringing a legal claim to challenge a will can be a complicated process which is why we always recommend using a specialist solicitor to manage your claim. However, in many cases, the additional legal services of a barrister will be vital in the successful resolution of your claim.

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legal texts may be of use in your will dispute. If you reach court, a judge will be involved to decide what the outcome should be.

Who will be involved in a will dispute?

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The legal system can be confusing if you haven’t had any experience of it before you needed to challenge a will. Here we look at the people who will be involved and the roles they play in your will dispute.

If you find yourself in the position where you feel you must take steps to challenge a will -either because you think the will is invalid, or because you feel you should have received more from the deceased – you will quickly discover that a number of people will be involved at different stages and for different reasons. In many cases, the legal system gives different names to the people involved. In this blog, we explain who will – or could – be involved in your will dispute, and the definitions used in the legal system.

The Claimant

This is you – the person challenging the will. You must have ‘an interest’ in the will concerned. This usually means that you will have been a close relative of the person who made the will, or were treated as such, although there have been cases where someone with a more distant connection to the deceased was able to bring a challenge, such as the recent case of Randall v Randall. In that case, the ex-son in law of the deceased was able to challenge a will, as otherwise, he would not have been able to resolve an issue arising from his divorce settlement which was linked to his ex-wife’s inheritance.

The Defendant

This is the person – or people – who must answer your claim. This could be other beneficiaries of the will, the executors of the will (or the administrators of the estate if there is no will and you are challenging how an estate has been distributed under the intestacy rules). It is often the case that this will be another family member. At Willclaim, we also act for Defendants in will disputes, so if you are aware that someone is challenging a will that you are either involved in executing, or that you benefit under, we can advise and assist you to defend the claim.

The Solicitor

You may initially approach an organisation like the Citizens Advice Bureau to raise your concerns, but if you are seriously considering making a legal claim in relation to a will or the contents of a will, you will need to take specialist legal advice from a solicitor with experience in ‘contentious probate’. Not every solicitor – and not every firm of solicitors – will offer this expertise, so make sure you choose carefully. The Association of Contentious Trust and Probate Specialists has a database of contentious probate specialists, or you may be able to find help from the Law Society using their ‘Find a Solicitor’ facility. We offer a comprehensive contentious probate service, dealing with all issues relating to contested wills and will disputes.

The Witnesses

Will disputes are almost unique in that the person who is the best placed to explain the will and what happened in the preparation of the will – to say whether they were pressurised into making a will a certain way, or to explain why someone was left less than someone else – is no longer here. With the Testator deceased, it is important to gather together as much evidence as possible relating to the circumstances that have given rise to the claim. Documents such as medical records and letters written by the Testator at the time when the will was made and leading up to it. Evidence from witnesses will also be important. These are people who can give evidence about the Testator and the Testator’s state of mind; they may be able to explain family history or other evidence which gives more details that can be used in the claim, or in the defence of the claim. Ideally, the witnesses will be co-operative and supportive of your side of the argument. In some circumstances, if someone has useful evidence but is unwilling to attend court, it is possible to compel them to come and give evidence.

The Barrister

If you’ve already engaged a solicitor to act in your will dispute, you may wonder why a barrister needs to be involved. A barrister is legally qualified, and will specialise in particular areas of law, offering independent and objective advice on your case. They are also trained advocates and experts in presenting cases in courts and also in negotiations which is why, even if you may be looking to reach a solution without going to court – perhaps through mediation– your solicitor may suggest getting a barrister involved to look at your case. Barristers are independent, and although they work in offices known as ‘chambers’ with other barristers, they are usually self-employed, the chambers acting as an ‘umbrella’ organisation run by clerks who co-ordinate the work of the independent barristers. They will have experience of many other cases, and how these have been resolved, and this can be invaluable in determining the strategy to adopt

The Mediator

Although some will disputes do end up in court, many legal challenges are resolved through negotiation or through mediation which is a quicker, more flexible and cost-effective way to resolve the issues you have. Unlike a judge in a court of law, a mediator cannot impose a decision on you. He or she will explore what the parties – the Claimant and the Defendant – would like to achieve, and then facilitate negotiations with a view to reaching an agreement. If mediation fails, the case may then proceed to a full legal hearing. You can read more about the role of a mediator here.

The Judge

Many will disputes are resolved through negotiation or mediation, but sometimes, this is simply not possible. The issues are too complex, or one or other of the parties (or both) are unwilling to compromise and reach a solution that both can live with. Ultimately, the dispute could end up in court, in which case, a judge will listen to the arguments put forward on both sides, examine the legal position, and reach a decision on the issue or issues, which will be in favour of either the Claimant or the Defendant. Having decided in favour of one or the other, the judge will then determine what should happen. The judge is restricted in what he or she can decide is the practical outcome (‘who gets what’) by legislation and court procedure, so you may find you end up with a result that doesn’t work as well as a mediated settlement, even if they judge ruled in your favour.

You may be surprised by the number of people who will be involved in your will dispute – it’s important to remember that this is a complicated area of law requiring expert advice to ensure a successful outcome. If you would like to talk to us about your situation, whether you are thinking of challenging a will, or you are a defendant in a will dispute, please get in touch! We offer a free initial assessment of will dispute claims, and can usually act on a ‘no win no fee’ basis if you decide to proceed with your claim.

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

A Mediator ’s View of a Will Dispute

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Many people hold a view of a legal dispute that includes a court room drama worthy of a John Grisham novel, but the reality is very different, and this applies as much in the context of a will dispute as to any other legal claim (criminal matters aside). Mediation now plays a big part in resolving will disputes – it’s a process of dispute resolution that you may not have come across before, but has several advantages for those involved. We talked to Phil Hesketh, an independent mediator, to give an ‘inside view’ of a will dispute – from the mediator’s perspective.

How did you become a mediator?

I qualified as a solicitor and worked as a personal injury solicitor, acting for injured workers. I felt I was providing a valuable service. However, I trained as a mediator in 2006 and realised I had found my true vocation. I discovered that I found helping people resolve their disputes as an independent party (rather than as a personal injury lawyer where I represented one side of a dispute) much more rewarding!

What do you consider to be the value of mediation?

Mediation offers several advantages if you’re involved in a will dispute. It’s much quicker than waiting for a trial. The mediation takes place on one day, and the parties retain control of the process. Another advantage over a trial is the parties cannot have a bad decision imposed upon them – if a solution is reached, it is because the parties all agree to it. There are huge cost savings for everyone involved if a will dispute is resolved through mediation. Finally, mediation gives the opportunity to work flexibly and draw up an agreement that resolves the issues in a more creative way than a court judgement can.

What is your role in the mediation?

It’s important to point out that I am independent – I work for both sides. I’ll communicate offers and discuss responses, with the aim of helping the people involved move towards a settlement acceptable to all. I can only pass on information from one person if they have given me permission to do so. As a mediator, I am there to tease out the issues, really get to the heart of what the people involved are seeking to achieve, and then help them to reach a solution. I’ll spend time finding out what each party is looking for. On first discussion, this can be quite general. Parties will say they “want an end” to the dispute, or “a fair resolution” so I need to understand what that means to them. Once this is clear, I can help the parties work towards agreement. I do this by moving between the private rooms where the different parties are based for the day, talking to each side.

How do you manage a situation when one side makes an offer that you know will upset the other side?

It’s not my job to judge what is a good or bad offer. On the other hand, if I know that an offer being proposed is likely to harm the negotiation process, I can invite them to reflect on whether, ultimately, making that offer will help them achieve the solution they are looking for. I help them explore other options but ultimately the parties decide what to do.

Are there any ‘down sides’?

Sometimes I finish a mediation with the parties having agreed a solution to their legal dispute but they have done this without actually speaking to each other during the process and leave it feeling as bitter and acrimonious towards each other as they did when they started. I feel this type of mediation, although resolving the legal dispute, misses a great opportunity for the parties to start some repairs to their relationship. I don’t mean that they will become best friends but just that they can deal with each other in the future in a more constructive way, without the need to correspond through lawyers. Not everybody wants to even consider this as an outcome but the potential is there and I am always disappointed when the parties decide not to engage with each other.

And the positives?

Well, aside from the advantages I’ve already mentioned, mediation offers the people involved an opportunity to be listened to, to have their complaints acknowledged, and to explain how the situation has impacted on them – even if it is just by me as the mediator. It’s a much ‘safer’ environment than a court room. Ideally, mediation results in the parties walking away having decided how to resolve the dispute and feeling in control of the outcome. Even if the mediation doesn’t result in a settlement, then the process should have helped the people involved be clear about the issues, and have a full understanding of why they decided not to settle.

Phil Hesketh is an independent mediator and consultant personal injury lawyer based in the northwest of England. You can read more about his services on his website.

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a conference room is where you may spend the day if you engage in mediation to resolve your will dispute

The benefits of Mediation in a will dispute

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In a series of blogs in which we look at mediation and the role it plays in resolving a will dispute and other contentious probate matters, here we consider the benefits of mediation.

What is mediation?

Mediation is a form of dispute resolution which involves negotiation between the parties, managed by an independent mediator. Mediation will take place on a particular day, and in a specified location. The person bringing the claim, and all the other parties involved, attend with their legal advisers. Although there may be an initial ‘joint meeting’ with everyone in the same room, for much of the mediation, the parties involved in the will dispute will be in separate rooms, with the mediator moving between rooms to communicate and discuss what is on the cards.

What happens during the mediation remains confidential. If the mediation does not result in an agreement and the case does go to a court hearing, nobody can refer to something that was said during the mediation.

The rules governing contentious probate disputes require the parties involved to consider and engage in some form of dispute resolution before a court hearing can go ahead. If you unreasonably refuse to co-operate, you can face stiff penalties from the courts, usually involving the payment of costs.

Mediation puts the individuals involved in the claim back in control

If you’ve ever had the experience of taking part in a full court hearing, you’ll perhaps appreciate that the individuals bringing or defending the claim can often feel as if they are playing a ‘walk on’ part in someone else’s drama. The whole scene is set up in a way that the lawyers and the judge play the major part, while you will only be able to speak when giving evidence, and being questioned.

Although you are legally represented during a mediation, there is none of the formality of a court room, and you are free to speak directly to the mediator should you wish to do so. Of course, if you don’t feel comfortable with this, your lawyer will be there to handle the negotiations, but this is up to you. Another way in which the parties are more in control is that the outcome will be agreed between them, rather than imposed by a judge. This, in itself, has lots of advantages, which we’ll look at next.

Mediation offers flexibility

If your dispute reaches a court hearing which runs to its conclusion, the judge will have very limited options. Your claim (or the claim you are defending) will either succeed or not, and the judge will be obliged to follow the outcome of that decision. In practical terms, this could mean that a will is held to be invalid in its entirety (a judge can’t decide that only part of a will is invalid) with all the consequences that follow from this.

A mediation is a far freer forum, unconstrained by the conventions of a court hearing and the restrictive options that a judge has open to him having heard evidence and legal submissions. No one ‘makes a decision’ in a mediation; there is no judgment. Instead, the parties involved negotiate to reach a conclusion to the matter, and this can include far more flexible and creative solutions than are open to a judge.

Mediation can result in creative and tax efficient settlements

Following on from the point about flexibility, a judge is limited in his options and can’t take into account things like potential tax consequences of a decision – this could mean that although you succeed in your claim, you may incur other disadvantages as a result.

The flexibility that mediation allows means that all these additional possibilities and consequences can be thrown into the mix as part of the negotiation, with the aim of reaching a far more practical solution to the issues than could be achieved in a court room. Settlements reached through mediation can include acknowledgements by one or both of the parties in relation to the situation that they found themselves in.

Mediation offers a significantly more cost-effective option than litigation

No one can enter into a legal dispute without giving a thought to costs. For most people, it will be a very significant thought – because legal costs can be extremely high. If a will dispute reaches a court room, the costs of the exercise can well reach 6 figures. Even if you have a ‘no win no fee’ arrangement with your legal team, and you win your claim, you won’t be able to recover all your costs from the losing party, and the legal costs can eat into any sums of money you have secured. If you lose your claim, you may not have to pay your solicitor’s fees but there will be other costs that you will have to pay, such as court fees. You may also have to pay the costs of the other side.

Mediation offers a far more cost-effective solution. That isn’t to say there will be no costs involved, but they will almost always be significantly less than the costs involved in proceeding to a court hearing, which has no certainty, and quite a number of risks involved.

Mediation can be a less stressful solution

Sadly, the reason you are contemplating this kind of legal action is because someone close to you has passed away. A court hearing can add even more stress to what is already a stressful situation.

Mediation is a much less stressful approach which allows you to be heard, but in a more comfortable environment than a court room. It will almost certainly involve compromise to reach an agreement. However, you will achieve a negotiated settlement that may be more beneficial to your situation than a court decision will be. Further, you will get there far more quickly and less expensively than going all the way to court, allowing you to put the matter behind you.

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we strip back a will dispute to its bare bones and look at the anatomy of a will dispute

The Anatomy of a Will Dispute

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Challenging a will can take two different forms – either a challenge to the validity of the will itself, or a claim for ‘reasonable financial provision’ under the Inheritance Act (essentially a claim that you should have been left more by the person who has died). You may not know yourself when you contact a solicitor which type of claim you will be bringing. However, although there will be differences, there are also enough broad similarities in practical terms to give you an idea, in general terms, of ‘the anatomy of a will dispute’.

Initial Steps

Even if you are already concerned about the contents of a will or the validity of a will, under English Law, you can’t take any action until the person who made the will has passed away. Once you become aware of the contents of the will, and feel that it needs to be challenged, your first steps are to take action to make sure that probate cannot be granted without you being informed. If you think the will itself is invalid, you need to enter a caveat on the Probate Register.

If you do not dispute the validity of the will, but feel that you should have received more under the will, you can enter what is called a ‘standing search’ which means you will be notified when Probate has been granted. This starts the 6 month time limit for bringing a claim under the Inheritance Act.

If you are not sure what you should be claiming, you should take legal advice to make sure you protect your position in the right way – either with a caveat or a standing search.

Taking Legal Advice

If you have not already done so (you don’t need a solicitor to enter a caveat), you should take legal advice at an early opportunity so that you can understand what you will need to prove your claim. It’s important to use a solicitor who is experienced in will disputes – they will be able to give you practical advice about the strength of your claim, and to talk through the issues and possible outcomes of legal action.

At this early stage, your solicitor will talk to you about legal costs and how the claim will be funded. In many cases, you will be able to enter into a ‘no win no fee’ agreement, such as the arrangements we offer our clients.

Kicking off the claim

Once you have spoken to a solicitor about your claim, established the type of case you are going to bring, and instructed the solicitor to act for you, you may find that things go quiet for a while. Be assured that this doesn’t mean nothing is happening!

Your solicitor will be taking steps to contact solicitors acting for the people who you will be bringing the claim against. This could be the executors of the will, other relatives, or perhaps another unrelated beneficiary under the will in question, such as a charity.

As a solicitor regularly instructed to act in will disputes, there are various actions I will take depending on the type of claim. I will need a copy of the will in question, and any previous wills. I will also contact any solicitors who were involved in drawing up the disputed will and requesting the ‘will file’. I may also apply for the medical records and social services records of the Testator if a claim is to challenge the validity of the will. The facts of each case will determine the kind of evidence I will be looking for. In will validity claims, there may be a number of reasons to argue that the will is invalid; equally, it may be a case where we could argue both will validity and a claim under the Inheritance Act.

Once I have received all these files and documents, I will kick off the claim fully with a letter of claim detailing the basis of your claim and the supporting evidence, and take it from there.

Negotiation and Mediation

Essentially, once a full letter of claim has been sent off to ‘the other side’ in the dispute, your solicitor will be working to gather as much additional evidence he or she can find to support your claim. This could include witness statements from doctors who were treating the testator at the time he or she made the will. It could include evidence from their friends or relations or others involved in the Testator’s care. Your solicitor may ask for advice from a barrister (counsel), a second opinion, about the case. Unlike your solicitor who will have been living and breathing your case from day one, a barrister can often offer a different perspective, and will be able to advise on the strength of your claim. The advantage of using a barrister is that he or she will have extensive experience about how the court is likely to view your claim.

While all this is going on, it is also very likely that your solicitor will discuss the possibility of negotiating a settlement to resolve the claim, or of using a mediator to see if agreement can be reached. It may be that from an early point, the possibility of settling will be placed on the table.

There are a number of benefits of reaching a settlement rather than pursuing the matter to a full court hearing, not least because it keeps the costs down, and puts you in control of the outcome, rather than relying on the decision of a judge. Even if solicitors cannot negotiate a settlement between themselves, a mediation, which takes place over the course of one day, will still prove a more cost effective than proceeding to a full hearing in court.

A Day in Court

A great many will disputes don’t get as far as court. In many cases, the parties can reach an agreement through negotiation or using dispute resolution such as a mediation. However, there will always be some cases where the parties involved simply cannot reach mutually acceptable common ground, so your solicitor will be involved in preparing for a hearing in court. At this stage, if we haven’t already done so, we will need to get a barrister on board.

You are unlikely to get a decision on the day of the court hearing, and may well have to wait. There may also be additional hearings relating to costs issues.

Of course, every case is different, and so there will always be variations, depending on the type of claim, the evidence, and the strength of the claim you are looking to bring. At Will Claim, we take great care to make sure you get the best advice whatever your claim and circumstances, with a view to reaching a beneficial outcome. If you would like to talk to us about a possible will dispute, please get in  touch!

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The importance of knowledge and approval

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A recent case has highlighted the importance of making sure that a Testator knows that they are executing a will, and understands and approves the contents of that will

One of the bases for challenging a will is that the person who made the will did not have knowledge and approval of the contents of the will. In the recent case of Poole v Everall the courts had to determine this in a complicated case involving a testator with a history of mental health problems and cannabis abuse

The Facts

David Poole had a history of cannabis abuse and mental health issues arising from a motorbike accident in 1985. He had been awarded a substantial settlement to assist him with his needs, and was primarily cared for by Mark Everall under a type of adult fostering scheme run by the council. His financial affairs were handled by a solicitor, latterly as a Deputy appointed under the Mental Capacity Act.

A will was drawn up in February 2012 under which the beneficiaries were David’s brothers, and a number of charities. However, he then drew up a different will in December 2012 leaving 95% of his estate to Mark Everall, his carer, and the remainder to his girlfriend. The brothers challenged on the will on the following bases – the will had not been properly executed, David did not have mental capacity to make the will, and that he did not ‘have knowledge and approval’ – primarily, he did not understand and approve the contents of the will. There was also a claim that Mark Everall had exercised undue influence and fraudulent calumny over David. After hearing detailed evidence about the complex interactions between David, his Deputy, and the carer, Mr Everall, the judge decided that the December will should be overturned, and the February 2012 will, which benefited the brothers, should stand.

  • The judge was satisfied that David knew he was executing a will in December 2012 – the real issues was whether he understood the contents of that will – and that the new will did not leave anything to his brothers.
  • As Mark Everall, the carer who was the executor and main beneficiary under the December will, was seeking to rely on it he had to prove its validity.
  • The facts of the case, coupled with David’s vulnerability and suggestibility and the ‘self-serving’ nature of Mr Everall’s evidence meant that the judge was unable to agree that David knew and approved the contents of the will.

Full understanding – knowledge and approval – is vital to avoid a challenge

In his judgment, the judge highlighted that fact that had the December will been executed before an independent solicitor who had read the will out to David before he signed it, there would have been a presumption that he did have full knowledge of the contents of the will. It’s clear that in this case, no presumption could be found. At the time the will was executed, Mr Everall made a recording of a conversation with David in an attempt to counteract any future challenge. However, although this referred to the contents of a ‘letter of wishes’ it did not deal with the will itself.

The key lesson is how important it is to make sure that the Testator understands the contents of his will and approves them at the time he or she executes his will. It’s clear that the circumstances of the case were sufficient to arouse suspicion. The December will represented a complete change from previous wills and the wishes of David that had been recorded in the run up to the preparation of the earlier will.

If you are concerned about the circumstances surrounding a will, we can offer a free claim assessment to talk through your options.

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A no win no fee agreement means you won't have t scrape together your loose change to fight a will dispute

The costs of challenging a will

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You may well have read stories in the press about high profile will disputes and the legal costs that are involved. While it’s true that bringing a challenge to a will is unlikely to come cheap, there are a number of options open to you which means you don’t have to find the money up front, and will only have to pay costs if you succeed in your claim. In this blog, we look in more detail at ‘no win no fee’.

What are the costs of challenging a will?

Bringing a challenge to a will inevitably involves costs. It’s an exceedingly complex area of law. While there is no requirement to use a solicitor, an expert in this area of law will be able to advise you on the strength of your case, the preparation of evidence and negotiate to see if a settlement can be reached without going to court. If a will dispute cannot be resolved and ends up before a judge, there are further costs preparing for the hearing, perhaps instructing a barrister, and the time spent in court at the hearing. The idea of all the costs may make you think twice before pursuing the claim. Community Legal Service funding (formerly legal aid) is rarely available for this kind of legal action, however great the injustice.

So if you don’t think you can afford a claim, what are the options?

Bringing a claim without legal advice

As we’ve already mentioned, there is no requirement to use a solicitor to bring your claim. You may be able to get some support from organisations such as Citizens Advice, but it is unlikely that you will be able to obtain comprehensive legal advice throughout the claim unless you engage an experienced solicitor who specialises in will disputes. Contesting a will involves complicated legal concepts, and procedures – and if you don’t follow the processes correctly, you may find you cannot bring your claim. This is regardless of how strong your claim might be. It’s also worth remembering that if you choose not to use a solicitor, you may find the pressure of working on the claim yourself without support takes over and has a detrimental impact on other areas of your life. You will also incur some costs such as the costs of registering the claim with the court.

No win no fee

In some cases, you may find you have legal expenses insurance if your home insurance policy (or another insurance policy) includes this option. If this is the case, your legal expenses will be covered by your insurance company. Another, increasingly common way of funding legal action is ‘no win no fee’. This doesn’t just apply in will dispute claims. The idea is that you will only have to pay your legal costs if you win your claim. Depending on the type of dispute, the costs may be recovered from the other side, from the estate of the testator or out of the monies you had been successful in claiming. However, this is still a better position than having to find the money to bring the claim up front.

No win no fee from Will Claim

In practice, our experience in this specialist area of law means that we will always assess any will dispute carefully at the outset, and as the claim progresses – for example as more evidence becomes available. The reality is that most of these types of claim are settled without the need for a court hearing or simply not pursued. Costs will be dealt with as part of settlement. If the case does go to court and you are unsuccessful, quite simply, we don’t get paid! Using no win no fee gives you the reassurance of being able to bring a claim and know that you will not face a huge legal bill at the end of it.

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2 older men whispering to each other perhaps one is poisoning the other's mind

Undue Influence or Fraudulent Calumny

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In our last blog (at least for now) about undue influence, we look at undue influence and fraudulent calumny

We’ve covered the issue of ‘undue influence’ in a couple of recent blogs, looking at the principles of undue influence as set out in the case of Edwards v Edwards, and then looking at undue influence in practice, looking at some cases where undue influence was – and where it wasn’t – proved. In this blog, we look at a related but different issue: “fraudulent calumny” and how this differs from undue influence.

What on earth is fraudulent calumny?

It’s an indication of how archaic the law can sometimes seem that there is a concept in will dispute law referred to as ‘fraudulent calumny’. Essentially, this refers to a situation where someone (person A) ‘poisons the mind’ of the person making the will (T)’s mind against someone else so that this someone else (B) is then left out of T’s will. This is not about A threatening or otherwise persuading T to make his or her will in a particular way. It is about A acting in a way that leads T to think less of B, to the extent that T then decides not to leave anything (or to leave less than he or she would otherwise have left) to B.

The difference between undue influence and fraudulent calumny is subtle, but it is important to understand. Undue influence is where A essentially coerces the person making the will to do so in a particular way that either benefits someone who would not otherwise have benefited (not necessarily the person doing the coercing) at the expense of B or leaves out B entirely. However, when undue influence is in play, A does not try and change T’s view of B – only to influence the contents of the will. Fraudulent calumny is about A changing T’s perception of B so that T appears to leave B out of the will of his or her own accord.

What is required to prove fraudulent calumny?

The case of Edwards v Edwards looked at what would be needed to prove fraudulent calumny.

A poisoning of the mind

As we mentioned earlier, rather than influencing the way a will is written, fraudulent calumny is about A influencing how T views B.

No other explanation

A vital element of fraudulent calumny is that there can be no other explanation for the way that the will has been written.

Knowledge of the lie

If you are looking to prove that A influenced T’s view of B, you must show that A knew what he was saying about B was untrue, or did not care if it was true or untrue. If A believed that what he was telling T about B was true, then even if those things were objectively untrue, this cannot alone be used to declare the will invalid.

A natural beneficiary

The other important factor when proving a fraudulent calumny is that ‘B’ must be ‘a natural beneficiary’ of T. This must be someone who would expect to benefit under T’s will – a child or near relative perhaps.

Fraudulent Calumny in action

Cases involving fraudulent calumny are even rarer than cases involving undue influence, but there are some that have reached the courts. Perhaps the key case is Edwards v Edwards, a case we’ve mentioned before. The facts were that a mother left her entire estate to one son (A), and nothing to her other son (B). B did not live close to his mother, but still did a lot for her and there was no reason that he should have been left out of the will. A lived with his mother and drank. It was established that A’s mother was scared of him, and also that A had told his mother that B had stolen money from her. The judge found that there was no other explanation for the way the will was written other than that A had poisoned her mind against B (and against B’s wife).

Not to be undertaken lightly

While some may consider fraudulent calumny to be an extreme form of undue influence, the key for anyone contemplating bringing a claim is to remember that they will need very strong evidence to prove that A made the allegations, cast the aspersions, fed the poison to T, and also that A knew or did not care that they were false allegations.  As T will not be around to give evidence about what had happened in the run up to making the will, anyone seeking to prove fraudulent calumny will need to think carefully about what evidence  they have – perhaps in the form of statements from other friends and family members close to T, letters or diaries.

If you think you may be in a situation where there has been fraudulent calumny or undue influence which has affected your inheritance, it’s vital to talk through the options you have to challenge the will concerned with a specialist. We are will dispute experts and offer a free claim assessment . We can handle most cases on a ‘no win no fee’ basis, making the whole process far more affordable than you might have thought.

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Undue Influence – what will (and what won’t) be enough?

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Considering the question of ‘undue influence’ in more detail

As we recently explained, proving undue influence when challenging a will can be difficult – but it’s not impossible. In this blog we look at some examples of circumstances where the courts have determined that undue influence was present – and also some examples of where it wasn’t.

Undue Influence – the principles

In our earlier blog about undue influence, we looked at the principles governing claims where ‘undue influence’ is said to make a will invalid. These were set out in the case of Edwards v Edwards. The fundamental points to prove are that the will

  • does not reflect the true intentions of the testator (the person who made the will); and
  • the reason for this is the behaviour of another person (although not necessarily someone who benefits under the will concerned).

Whether there has been undue influence will be a question of the facts in each case.

Vulnerability and constant telephone calls

So let’s look at the first of our case studies where the courts agreed that there had been undue influence which meant the testator’s will did not reflect her true intentions. In Schomberg v Taylor, the testator had made a will in 2005 in which she left most of her property to her stepsons. However, in 2008, she made a new will leaving most of her property to her nephews and only small gifts to her stepsons. In challenging the 2008 will on the grounds of undue influence,  the stepsons brought evidence that the nephews’ father had repeatedly telephoned Mrs Taylor asking her to change her will in favour of his sons. The phone calls had continued to such an extent that the testator asked her carer not to put his calls through to her. The court found that at the time of the phone calls, Mrs Taylor was vulnerable following the death of her husband. The court found that in the circumstances, given Mrs Taylor’s vulnerability and her wish to make the persistent telephone calls stop – she had bowed to pressure to make the new will which did not reflect her true wishes. There had been undue influence.

‘A forceful man with a forceful presence’

Another case where undue influence was successfully argued was Schrader v Schrader. In this case, the testator’s first will divided her property equally between her sons. This will was superseded by a later will which treated one son, Nick, more favourably than the other, giving him the house. At the time this new will was made, Nick was the testator’s sole carer and was known to be ‘a forceful man with a forceful presence’. The will writer engaged to draw up the will had had no contact with the family beforehand and the reason given to the will writer for giving the house to Nick was inaccurate. The court decided this was probably because Nick had given the reason, rather than the testator. The court also found no real reason why the testator should change her will in this way. In addition, there was evidence that Nick had felt that he had been unequally treated by his parents in the past. He had initially sought to cover up both the existence of the later will, and his role in drawing that will up, which the court felt suggested he himself had misgivings about the circumstances of the will. Taking all the facts together, the court found that Nick had unduly influenced the testator to leave him her house. The later will was invalid, and the earlier will which treated the brothers equally was declared to be the true will.

Although you may have suspicions that undue influence has been brought to bear, it’s important to remember that suspicions are not going to be enough to prove that there has been undue influence. You must be able to show that undue influence was brought to bear, and that this meant that the will did not reflect the true intentions of the testator. Just because a will appears to be ‘unfair’ does not of itself mean there has been undue influence.

Suspicious circumstances are not enough

Hubbard & another v Scott and others is another case where suspicious circumstances alone were not enough to lead to a conclusion of undue influence. The testator’s first will left his estate to a friend and neighbour, and if she did not survive him, then the estate was left to his daughters. When the neighbour died, the testator made a new will which left everything to his cleaner, Mrs Kruk. The daughters argued that there was no reason why their father should have suddenly decided to leave his family out of the will. They argued that he had only known Mrs Kruk for a couple of months before his death, and she had never been more than his cleaner – there was no closer relationship. They also raised concerns about Mrs Kruk’s behaviour after the testator’s death, concealing the fact of the death and the funeral arrangements from friends. All very suspicious – however, there was no evidence that Mrs Kruk had somehow pressurised the testator into making a will that left everything to her and the expense of his family. The judge found that the testator’s behaviour could simply be explained as that of a lonely, elderly man whose daughters visited him only infrequently, and there was no one else to whom he wanted to leave his estate.

Undue influence must be the only explanation

In Wharton v Bancroft & others the will concerned was drawn up within hours of the testator being discharged from hospital with terminal cancer. The will left everything to his long term partner, Maureen Wharton, who he then married an hour after executing the will. Not apparently suspicious, however, it had been the testator’s stated intention for a long time that his estate would be left to his 3 daughters, with his partner having a life interest. The testator had also been part funding his granddaughter’s education, and the will made no mention of this. Witness evidence from individuals who had nothing to gain from the will was that after leaving hospital but before drawing up the will, the testator had confirmed his intentions to leave property to his daughters. He also reassured one of the daughters that the granddaughter’s school fees would be taken care of. Further, the judge was not entirely convinced by the evidence of Mrs Wharton. However, despite all this suspicion, the judge did not feel able to find that there had been undue influence. He could not conclude that undue influence was the only explanation for the testator’s behaviour – rather the testator could simply have changed his mind and ‘put his house in order’ having decided to marry his partner of 32 years.

Expert advice is crucial

Hopefully, the examples above have given you a more practical idea of what will and won’t amount to undue influence. If you are worried about the circumstances in which a will was drawn up, your first step must be to take legal advice so that you understand the strengths and weaknesses of your case, what your options may be, and the possible outcomes of pursuing legal action. If you’re considering bringing a case to overturn a will because of undue influence, talk to us first!

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The (almost) A-Z of a will dispute

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Will dispute? Confused by legal jargon? Our blog should help make things clearer!

The law that applies in the case of a will dispute is full of technical language, much of it deriving from years gone by, and often difficult to understand, even by lawyers who specialise in other areas of the law.  Our (almost) A-Z guide should help you get to grips with what’s going on – and if you’ve got any questions, get in touch!

Administrator (see also Letters of Administration)

If someone dies without leaving a will – ‘intestate’, their estate will be handled by Administrators – usually close relatives, who must apply for Letters of Administration to handle the estate and deal with its distribution

Beneficial Interest

A ‘beneficial interest’ – or simply ‘an interest’ in the estate is required before someone can challenge a will. People who are named in a will, or who would inherit under the rules of intestacy have a beneficial interest in a will, but the courts will occasionally allow someone with a slightly more tenuous connection to challenge a will, if justice requires it.

Caveat

If you have a concern about the validity of a will, you can enter a Caveat to stop the Grant of Probate and to prevent the estate being distributed while your claim is being considered.

Distribution

Distribution is the division of the deceased’s estate amongst the beneficiaries, in accordance with the will, or according to the Intestacy Rules. If you are worried about the validity of a will and wish to contest a will, you should enter a Caveat to prevent the grant of Probate and distribution of the estate.

Estate

The ‘Estate’ is the possessions, property, assets of the deceased, and also his debts

Executor (See also Probate)

When someone dies leaving a will, the chances are the will has appointed Executors to handle the estate and to oversee its distribution in accordance with the will. There are professional executors who can carry out these tasks, as the role of executor can sometimes be complicated and time consuming.

Fraud

There are a number of situations when a will can be challenged on the grounds that it is a fraud. Will fraud is increasingly common and can be hard to prove if the document is, apparently, signed, dated and witnessed. Will fraud can arise if a will is deliberately destroyed in order for an earlier will (or the rules of intestacy) to apply. Will fraud is also committed if the signature on the will is not actually that of the Testator, if the will was not in fact signed in the presence of the witnesses

Golden Rule

The Golden Rule is a rule that applies to solicitors drawing up wills for their clients in circumstances where there is a risk that the mental capacity of the Testator at the time the will is made may be challenged. In these circumstances, the Golden Rule is that the solicitor MUST take steps to make sure the Testator has the mental capacity to make a will – if necessary by obtaining medical evidence from a specialist.

Intestacy

When someone dies without leaving a will, they die ‘intestate’ and a series of rules – the Intestacy Rules – apply to govern the distribution of the estate.

Knowledge and Approval

When a will is properly signed and witnessed, the courts will presume that the testator ‘had knowledge’ of what was contained in the will, and ‘approved’ the contents of the will. If the will is drawn up in circumstances which “excite the suspicion of the Court” – for example if it is drafted by someone who benefits under the will and the will is very complex, it may be possible to argue that the will was not executed with ‘knowledge and approval’.

Letters of Administration

When someone dies intestate – without a will – Letters of Administration must be applied for by someone willing to undertake the distribution of the deceased’s estate in accordance with the Intestacy Rules.

Mediation

Mediation is a process through which many will disputes can be settled. Mediation uses the services of a professional mediator – a facilitator who will listen to both sides of the case, challenge, negotiate and ultimately aim to bring both sides to a resolution. It is a far less formal process than court proceedings and does not involve the parties having to face each other in the same room when emotions can run high.

Mental Capacity

A Testator must have mental capacity to make a will. He or she must know what he is doing, and what the implications of the will are. It is the Golden Rule of will making that where a Testator is old, seriously ill, or otherwise vulnerable, the solicitor drawing up the will must be satisfied that that testator has the necessary mental capacity. If necessary, the solicitor should involve a medical expert.

No Win No Fee

The basis on which we at Willclaim Solicitors can handle most will disputes. ‘No win no fee’ is exactly that – if the claim is unsuccessful, we will not be paid. If the claim is successful, we will recover our costs – usually from the other side, and if not, from the share of the estate that you receive as a result of the claim.

Personal representatives

Personal Representatives are the people who have legal authority to represent and manage the affairs of the person who has died. In the case where there is a will, the personal representatives are known as ‘executors’. Where the individual died intestate, the personal representatives are known as ‘administrators’.

Probate

Probate is a process by which a will is determined to be valid. Once the process is complete, assuming there are no problems, a grant of Probate will be made to the Executors who can then administer the estate.

Risk

As with any legal action, it’s important to weigh up the likelihood of succeeding against the risks of bringing a case. One risk to consider before bringing proceedings is whether you will be in a better or worse position should you be successful. If you are challenging a will, and succeed, meaning that there is then no will, and the rules of Intestacy apply, where will that leave you?

Settlement

A settlement is what is reached if the parties involved in the will dispute can agree the outcome without going to court. Mediation is often instrumental in achieving a settlement.

Testator

The Testator is the person who has made the will. He or she should be over 18, and must know and appreciate what they are doing

Undue Influence

While it is difficult to prove, if there is evidence to show that the wishes and intentions of a testator were entirely overridden by someone else and the testator was effectively forced into making a will that did not reflect the testator’s wishes, but the wishes of that someone else, then a will may be successfully challenged on the basis of undue influence.

Valid execution

Valid Execution relates to the process by which the will is made. The will must be signed by the Testator in the presence of 2 witnesses who must then themselves sign the document.

Will

Last but by no means least – the Will. It’s fundamental (of course) to all these claims – they are ‘will dispute’ claims after all, so there needs to be a will. A will is a legal document by which the Testator sets out who is to inherit his or her property and in what order. To be binding, the will must have been validly executed.

Got any questions? Get in touch using our email contact form, or give us a call 020 3322 5103

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